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Article by Kerensa Gimre The Stockholm Declaration of 1972 internationally recognized the link between human rights and the environment, stating that “the enjoyment of freedom and equality among humans is inseparable from the preservation of an environmental quality which permits human dignity and human welfare.” However, enforcement of environmental law through the human rights framework has proved difficult. Since the Stockholm Declaration, courts have recognized the environmental dimension of human rights, but the right to a healthy environment is considered only an extension of recognized human rights, not an inherent right. Further, because human rights are conferred on the individual, and most environmental damages occur at the community or regional level, human rights law is largely ineffective at regulating the environment, a public good. However, human rights law is an advantageous mechanism for environmental protection because it addresses damages to the private life, health, and property of individuals; it holds governments directly accountable for failing to regulate certain damaging environmental practices that directly affect individuals and inspires the human right to a healthy environment due to the causal relationship between environmental & human harm. Interpretation by the European Court of Human Rights Article 8(1) of the European Convention on Human Rights (ECHR) states, “everyone has the right to respect for his private and family life, his home and his correspondence.” While the ECHR does not contain an explicit right to a clean environment, The European Court of Human Rights often interprets Article 8(1) as implying some duty of environmental protection. Environmental degradation can negatively impact an individual’s home or family life, directly infringing upon the individual’s human rights. Depending on how the environmental damage impacts human rights, it may be the State’s duty to protect from such environmental damage. In several cases, the Court affirms that the human right to private life in Article 8(1) can justify enforcement of environmental protections. In Lopez Ostra v. Spain (1994), the Court found that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely.” In Oneryildiz v. Turkey (2005), the Court found that it is necessary for States to defend “against threats to the right of life” and that it may be necessary for government to adopt environmental protection measures in order to protect human rights, such as the right to life. Interpretations Outside of Europe In these cases and others, the European Court always construes human rights as individual rights. This interpretation differs from the African Charter on Human and People’s Rights (ACHPR) and the American Convention on Human Rights (ACHR), which consider the collective dimension of human rights. Since environmental problems generally cause harm on a regional, not individual level, this interpretation suggests a higher level of government responsibility for environmental protection and human rights. In Ogoni v. Nigeria, the court interprets Article 24 of the ACHPR as stating, “an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecological equilibria is harmful to physical and moral health [of the individual].” Similarly, in Mayagna Sumo Awas Tingni Community v. Nicaragua, the Court interpreted Article 21 of the ACHR and the right to property “as inclusive of the customary community entitlement of the indigenous people to use their ancestral land for agriculture and hunting, and to have it respected against the environmentally and culturally destructive project of commercial logging.” These views are more expansive than the European Court’s and use human rights to guarantee a community, not just an individual, the right to environmental quality that will not impact human rights. This circumvents the problem of conferring human rights on the individual but, in most cases, only being able to prove environmental harm at the level of the community. Interpretations by the UN The UN Covenants contain few environmental considerations in their human rights provisions. Several environmental cases decided by the UN Human Rights Council are brought under Article 27 of the Covenant on Civil and Political Rights, a minority protection clause with a cultural provision that confers rights on “persons belonging to minorities” but does not provide collective rights to the minority group itself. In the case of Lansman v. Finland, the Council found that “Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture, [but] measures that have a limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under Article 27.” In Lubicon Lake Band v. Canada, the Council expanded this view to find that environmental damages from oil and gas extraction on the lands of an indigenous community violated Article 27. In Lubicon, the Council conferred human rights to the indigenous community as a whole. Similarly, in Francis Hopu and Tepoaitu Bessert v. France, the Council broadly interpreted Article 27 (the protection of private and family life), by construing “family” as inclusive of the entire indigenous community. The Council’s Resolution 2005/60 reaffirms the UN’s recognition of the interconnection between human rights, environmental protection, and sustainable development: “Climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence.” However, the Council hesitates to fully incorporate environmental protection into human rights law, adding “While climate change has obvious implications for the enjoyment of human rights, it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” Discussion The right to a home, family, and private life is common across treaty regimes, but different courts have inconsistent interpretations of a State’s responsibility to protect this right. Broader interpretations that confer rights upon communities, not just individuals, allow for greater environmental protection. This is helpful since most environmental harm occurs on a community level, where it is difficult to prove harm to an individual. Due to the individualistic treatment in several courts, it is clear that interpretations by European courts and the UN are insufficient to tackle environmental degradation that harms human rights at a global or transboundary level, or even environmental degradation on a local scale, where it is difficult to prove that individualized harm exceeds societal benefits. As the UN has noted, “human rights litigation is not well-suited to promote precautionary measures […] unless such risks pose an imminent threat to the human rights of specific individuals. Yet, by drawing attention to the broader human rights implications of climate change risks, the human rights perspective, in line with the precautionary principle, emphasizes the need to avoid unnecessary delay in taking action to contain the threat of global warming.” This statement reiterates that it is necessary to take action to prevent climate change that can impinge upon human rights but realizes that current human rights litigation frameworks are ill equipped to provide legal impetus to this end. A 2009 report from the UN Office of the High Commissioner on Human Rights reaffirms that “further guidance is needed to inform options for further development of the law in this area,” adding that “while the universal human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations human rights treaty bodies all recognize the intrinsic link between the environment and the realization of a range of human rights, such as the right to life, to health, to food, to water, and to housing.” The outbreak of the Syrian Civil War emphasizes the importance of shifting the perspective of human rights law to collectivize human rights and recognize the dangers posed by climate change and environmental degradation. Multiple studies demonstrate that climate change caused and intensified the drought that ultimately led to the human rights crisis. Even though human rights legal regimes are currently ill-posed to promote precautionary measures to protect the environment, broader liability could be imposed on countries and corporations for the climate change and the human rights impacts caused their actions. Through imposing broader liability, human rights litigation that incorporates a consideration of environmental harm at the community level could become a more effective avenue for promoting precautionary measures.

Article by Amrit Singh Introduction to investment arbitration ISDS or investor-state dispute settlement is a procedural mechanism through which a foreign investor can directly claim certain rights against a host state before an arbitral tribunal. A host state, if found violating the rights, as set out in the bilateral investment treaty of parties, provides an arbitral tribunal an opportunity to order a host state to compensate an investor. The most prominent reasons for an investor comprise nationality-based discrimination, expropriation and treatment that falls below a “minimum standard”. It is to be noted that the claims brought by foreign investors are mostly based on the above mentioned reasons. Nationality-based discrimination would simply relate to the MFN or which is known as the most favoured nation clause, which means that a host state discriminated a foreign investor ‘A’ by not providing him/her the same rights as had been provided to an investor ‘B’ who belonged to a different nation. Secondly, expropriation would mean taking away of a private property of a foreign investor by a host state, in order to use that property for some public purposes or any other reasons. A host state could only expropriate if it provides a just compensation to an investor. Now, it is to be noted that the ISDS mechanism has been heavily criticized and some of the most deficient aspects include the inconsistency in arbitral decisions, high cost of arbitration, lack of transparency and legitimacy and that there is no recourse for erroneous decisions. Firstly, starting off with the legitimacy aspect, this is extremely true as dispute settlement in the ISDS lacks legitimacy because of the primary reason that the current dispute resolution system that aims to resolve the dispute between a private investor and a sovereign state, is inefficient as the decisions of ad hoc tribunals can have a significant impact on the public sphere of a host state. Secondly, there is also a danger of conflict of interest as many-a-times, arbitrators also act as counsel in other cases and since there is no open and public process for appointment of arbitrators, all of this leads to a situation wherein the fairness and objectivity of the decisions in ISDS cases can be challenged. Thus, it can be safely concluded that transparency is also a major issue as the decision of an ad hoc tribunal affects the public at large and if parties do not consent to reveal information to the general public, then this constitutes a major breach in transparency. Moreover, there is high uncertainty and inconsistency when an arbitral tribunal interprets the provisions of a bilateral investment treaty resulting in a new decision every time as the decision more on less depends upon the mind-set and perspective of arbitrators. EU’s proposed reform of ISDS However, since EU’s introduction of the investment court system, things have changed a bit, however this does not mean that it has brought about a positive change. It is to be noted that ICS or investment court system has reinvented the investor-state dispute settlement mechanism by bringing the concept of a ‘court’. Further, the ICS also aims to strengthen the review mechanism and legitimacy aspect of the new system as it has established a first Instance Tribunal and an Appellate Tribunal. In case of the TTIP proposal, of the 15 judges of the Tribunal of first instance, “five of the judges shall be nationals of a Member State of the European Union, five shall be nationals of the United States and five shall be nationals of third countries.” Similarly, the Appeal Tribunal shall be composed of six Members, of whom two shall be nationals of a Member State of the European Union, two shall be nationals of the United States and two shall be nationals of third countries. The EU proposal does the same as its predecessor, as it also grants power to foreign investors only to sue corporations for almost anything and everything a host state does. A host state has the power to enact laws to promote worker rights, financial stability, environmental protections and public health but all of this can be easily challenged by an investor. For example, in the case of Philip Morris v. Uruguay, Philip Morris sued Uruguay on the basis of a BIT with Switzerland. The claim of the investor is that Uruguay has breached the fair and equitable treatment standard because the anti-smoking laws are “excessive”, “unreasonable” and “arbitrary”, bearing no relationship to the Government’s public health policy. Now, the reason why this case needs to be discussed is because of the reason that the EU proposes that investors’ legitimate expectation should be protected and should also be protected against indirect expropriation. It is pertinent to mention that legitimate expectation in this context would mean that a state should only take those actions or enact only those laws which do not hamper the profit making business of an investor. This can be conveniently stated as investors have been regularly challenging the laws made by a host state in light of the public interest. Analysis The ICS system also does not change the way things are working out, as an investor can challenge a law made by a state for the benefit of the public and if the investor wins the claim, then the compensation would have to be granted by a host state and that can easily range in millions and billions of taxpayers’ money. Moreover, it must be noted that under the new EU proposal, investment tribunals could not order governments to rewrite or reverse a law. However, a prudent man could easily understand the consequences of this provision as there is no limit on the amount of compensation that can be paid to a corporation or an investor. This leads to an inference that a politician would never enact a law for the betterment of health and environment, if he/she knows that the ultimate ramification of this law or action would be an eye-watering sum in compensation. Also, it must be highlighted the investment court system would have an in-built investor bias. Since, only an investor has a right to sue a government and not vice-versa, the judges who would have a retainer fee, would be more inclined towards ruling in the favour of an investor, since this would bring them more cases. The ICS does not resolve the issue of one-sidedness in the investor-state dispute resolution system because even in the new system, only investors have a right and a host state and its citizens have a responsibility. Another grave issue with respect to the establishment of an investment court is that investors have an authority to bypass the ruling pronounced by domestic courts of a country by taking the matter to a foreign or an investment court. For example in a case, an Ecuadorian court ordered the US oil giant Chevron to pay 9.5 billion dollars to indigenous groups to clean-up vast oil-drilling related contamination in the Amazonian rainforest. However, Chevron smartly bypassed that order and pursued a claim before a three-person arbitral tribunal. Now, this is a very tactical move opted by the corporation in order to avoid the compensation ordered by the domestic court. It must be noted that if such kind of a system continues, then host states would stop entering into bilateral investment treaties with investors as the ultimate conclusion of all of this would be to either settle the whole matter brought up by an investor, or to pay compensation to that investor. Conclusion The proposal introduced by the EU is not helping the cause of a host state. The establishment of an investment court seems biased towards promoting the interests of a foreign investor and this would further make them powerful to an extent that such investors would not fear anything and would do anything and everything to promote their businesses. With the establishment of an investment court, the powers of domestic courts along with the power of a legislature to make laws for the benefit of the society, would get lessened and weakened due to the fear of getting sued by an investor. Therefore, the EU proposal is no good a solution and only provides corporations with some dominant rights and powers to bully a state when it acts in accordance with the public interest. Hence, despite the fact that the proposal originally intended to balance the rights of an investor and a host state, it enhances the interests of the former only. About the Author: Amrit Singh is a third-year B.A., LL.B. (Hons.) student at Institute of Law, Nirma University, Ahmedabad, India. He has previously interned at Shardul Amarchand Mangaldas & Co and with the advocates practicing at Madhya Pradesh High Court and Supreme Court of India. He has a penchant for international arbitration and is a member of the Chartered Institute of Arbitrators, Singapore International Arbitration Centre and Young-Mumbai Centre for International Arbitration.

Article by Sela Brown As the caravan of Central American migrants continues to travel towards the United States, countries have reacted in starkly different ways to the arrival of thousands of migrants. In Mexico City, authorities and citizens welcomed the migrants, providing them with free medical check-ups, helping them get rides, and allowing them to sleep in the city’s stadium. Although Mexico’s asylum law requires the country to welcome many of these migrants, this warm reception is a relatively new phenomenon. Other countries have not reacted as positively to the migrants. Guatemala recently detained hundredsof migrants, mostly El Salvadorian men. Last week, President Trump announced changes to U.S. policies to restrict migrants seeking asylum. Trump declared that the U.S. will deny asylum to migrants who cross into the U.S. illegally. This would reverse decades of U.S. policies allowing migrants to seek asylum regardless of how they enter the country. Immigration advocacy groups assert that this violates asylum law and U.S. treaty obligations. Trump’s new police is already being challenged in court by the ACLU. For the moment, announcements of policy changes have not deterred most migrants from their journeys.

Article by Hannepes Taychayev The existence of customary international investment law is a contested matter. However, some scholars put forward a proposition that the standard of National Treatment (NT) under international investment law acquired a status of customary rule.  The main purpose of this piece is to argue against the proposition. The present post argues that the homogeneity of NT rule in International Investment Agreement (IIA) practice alone is not enough for it to become a rule of customary law. National Treatment (NT) is one of the core investment protection treaty standards aimed at equalizing the playing field between international investors and local competitors. The standard is not absolute and traditionally the norm has not been recognized as part of customary international law. Article 85 (1) of India-Japan FTA provides a good example of a typical NT clause. It reads as follows: “Each Party shall accord to investors of the other Party and to their investments treatment no less favourable than that it accords in like circumstances to its own investors and to their investments with respect to investment activities in its Area.” The wording of NT clauses remains relatively same throughout International Investment Agreements (IIA). The basic idea behind it is that “the foreign investor is accorded treatment no less favourable than that which the host state accords to its own investors”. And it has been argued that relative homogeneity of the NT clauses made it easier to apply it in dispute settlement proceedings than other standards of protection. Recently in academic discourse an argument has been put forward that: “… [t]he relative homogeneity of NT in IIA practice around the world could indicate that it has itself become part of customary international law, precluding the need for it to be expressly granted in the text of a treaty.” However, “[t]he fact that a large number of bilateral treaties of an identical or a similar nature are being concluded does not of itself entitle one to conclude that a new rule of customary law of a similar content has come into being.” The same logic applies to standards of protection contained in international investment treaties. In other words, no inference could legitimately be drawn as to the existence of a rule of customary international law in favor of the NT principle based on homogenous drafting of the rule in the vast network of IIAs and its practice alone. Considering the importance of the standard, it seems necessary to provide further qualification for the proposition that NT has developed into a norm of customary international law. The present post examines if homogeneity of NT rule in IIA practice in the aggregate, suffices to constitute for it to develop into a customary rule of international law. It could be argued that initially protection of foreign investment was subject to protection of the rule of the custom under international law. However, nowadays, diplomatic protection regime has been replaced by the international investment protection law. The rules and standards of protection that exist under the umbrella of international investment law today are not mere reinterpretations of the traditional rules, such as those found in customary international law and diplomatic protection. There is a great deal of difference between norms of customary international law and treaty-based protections of foreign investment. As it stands now international investment law is dominated by treaties rather than custom. And the notion of existence of international customary investment law is highly contested. Simply put, international investment protection regime is by and large a treaty driven one. There are two basic elements that constitute international customary rule: state practice and opinio juris. The two element mantra has been confirmed and reconfirmed by the ICJ in a number of decisions. The practice needs to be not only widespread but also consistent among the parties affected the most. Further, as is it was mentioned earlier, there also has to be the second internal point of view element – opinio juris. States need to “[feel] legally compelled to … [perform the relevant act] by reason of a rule of customary law obliging them to do so”. The psychological element is equally important as widespread and consistent practice. Opinio juris is the element that allows to distinguish the rules of law form other many international acts, which are performed and motivated by considerations of courtesy, convenience or tradition. Having that said homogeneity of a norm in a treaty practice alone is not enough for it to develop into a norm of customary rule the two elements constituting a custom need to be proved. The homogeneity and widespread practice with regard to NT simply proves that there is a piling up of a large number of instances in treaty practice. The States that have NT provision in their IIA and are acting and applying the rule in the application of their IIA. As the ICJ pointed out in the North Sea Continental Shelf case, there could no legitimate inference drawn as to the existence of a rule of customary international law in favor of a principle that is being practiced in application of treaty obligations. In other words, it is not the practice of States that apply the rule in performing their treaty obligations that matters but the practice of States who practice the rule where no treaty obligation exists. Even there are States that apply the rule as between themselves without a treaty, the basis of their actions is speculative and “no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law.” One could conclude with rather high degree of confidence that applying the NT rule, or agreeing to apply it, does not speak of anything of a juridical nature. States could be willing to offer to apply the rule for the purposes of attracting investment. And in this case the application of the standard of protection could be a marketing tool for a host state intended at attracting the foreign capital. In light of the foregoing arguments, it could be stated that even if there is a settled, widespread and consistent practice among states that apply NT rule not under a treaty obligation, there is no proof that they are doing it in a belief the practice is obligatory by the existence of a rule of law. And the practice alone is not enough to amount to rule of a legal obligation under the two elements required for a customary international norm to emerge. It is clear that as it stands now NT does not meet the necessary threshold to be a norm of customary law. There are also other reasons and considerations why NT should be developed into a norm of customary rule. Discrimination is a valid and powerful means of regulating economic activities. Many of the investment protection treaty standards are granted on bilateral basis. For this reason, NT is included in bilateral treaties so as not to multilateralise the benefit to third parties and not be obliged to grant the benefits ensuing as a matter of customary international law. One could also argue that forcing states to multilaterlise benefits usually contained in IIAs to third parties would diminish the role of the consent of States in international investment law. At the risk of stating the obvious it has to said that State consent is at the very foundation of international law and there is no higher norm in the international system from which a valid norm could be drawn. At least theoretically. It ensures the validity of all other norms and legitimacy of legal regimes under international law. Concluding remarks International investment law has been under attack for ad hoc nature of international investment regime, lack of consistency in the membership of arbitral tribunals, absence of doctrine of precedence, and different interpretations of investment treaties that result in obligations of indeterminate character. Ascribing NT status of custom would further complicate the matter. States should have broad margin of appreciation in deciding what norms they want to be bound with not, obligations arising from NT should be based on informed and explicit consent. Hannepes TAYCHAYEV (Mr.) Faculty of Law, American University of Central Asia Hannepes TAYCHAYEV holds a BA degree in International and Comparative Politics from American University in Central Asia (AUCA), Bishkek, Kyrgyzstan; a Master of Law in International Law from Korea University, Seoul, South Korea. He joined AUCA Faculty of Law as a lecturer in law in August of 2018. At the moment he is teaching classes on Public International Law, International Humanitarian Law, and Law and Economics. His research interests primarily are focused on public international law, international investment law and international arbitration law

Article by Kerensa Gimre On October 2nd, French Polynesia’s former president, Mr. Oscar Temaru, filed a complaint with the International Criminal Court (ICC) against all living French presidents for their alleged crimes against humanity testing nuclear weapons in French Polynesia from 1966 to 1996. Mr. Temaru alleged these incidents amounted to “nuclear colonialism” by the French government since French Polynesia could not reject the tests due to the threat of military intervention. From the 1960s to the 1990s, more than 150,000 military personnel and civilians were involved in the nuclear tests. There were 368 documented instances of nuclear fallout and several organizations allege that radioactive waste was discharged into the ocean in violation of international law. There were also 147 underground explosions that destabilized atolls in the region, rendering them unfit for human activity. Recent studies show increased rates of thyroid cancer among island inhabitants. In 2010, France started a compensation fund for cancer victims, but only 20 people (of more than 1,000 who have filed claims) have received compensation under the fund because of the difficulty in proving a causal link between any one instance of cancer and the nuclear tests. The case filed with the ICC is unlikely to succeed, since the ICC only has jurisdiction over incidents arising after July 1, 2002. There is also considerable political pressure on Mr. Temaru to drop the claims. On October 29th, France declared Mr. Temaru ineligible for his assembly seat in French Polynesia due to “campaign finance irregularities.” Mr. Temaru complains believes this action is in retaliation for the complaint he filed with the ICC.

Article by Karin Bashir When Hatice Cengiz said goodbye to her fiancé Saudi journalist Jamal Khashoggi as he entered the Saudi consulate in Istanbul on October 2nd, she never expected it to be a final goodbye. Throughout his life as a journalist, Khashoggi had a desire for progress in Saudi Arabia as a long-time vocal critic of the kingdom. His death was full of irony. In attempts to permanently silence him, Prince Mohammad amplified his voice: Khashoggi’s name rings now as a battle cry for freedom of expression around the globe. A cry that may potentially end the three-year-long civil war in Yemen. Yemen’s Civil War According to the United Nations, the world’s worst humanitarian crisis isn’t in Syria, it is in Yemen. The Yemen Civil War has lasted for three years. It began in 2012 after President Ali Abdullah Saleh was forced to hand over power to his then vice president Abd-Rabbu Mansour Hadi. In his new position, President Hadi could not maintain stability, as political chaos, massive unemployment, suicide bombings, and a growing separatist movement engulfed the south. Then in 2014, the Houthis and those loyal to deposed President Saleh took over the capital of Sanaa, forcing President Abd-Rabbu Mansour Hadi in 2015 to flee to Saudi Arabia. This event marked the beginning of the terror in Yemen. The Saudi’s saw the Houthi take over as a direct and imminent threat to Saudi Arabia because of the potential relationship between the Houthis and Iran. In 2015, Saudi responded to the threat by forming a coalition with Kuwait, the United Arab Emirates, Bahrain, Egypt, Morocco, Jordan, Sudan and Senegal and began a military campaign in Yemen in order to restore Hadi to power. The chaos that erupted from the civil war was ripe for outsiders hoping to gain territory in Yemen. ISIL and Al-Qaeda, alongside other militant groups, took advantage of the chaos and have claimed responsibility for numerous suicide bombings. The U.S. used the opportunity to continue its counterterrorism operation in Yemen. Between 2016 and 2017 the U.S. conducted approximately 165 drone attacks in Yemen. The chaos and ever-changing power dynamics of the war even resulted in the once described Houthi Saleh party murdering President Ali Abdullah Saleh in 2017. Humanitarian Toll The Yemeni citizens caught in the conflict are bearing the true cost of the war. Alongside the indiscriminate violence, there is mass famine and outbreak of diseases like Cholera increasing to 10,000 cases per week.  Only two-thirds of the Yemeni population has access to water and the civilian toll is estimated to be at 15,000 killed or injured with over twenty-two million in desperate need of assistance. Perhaps what has garnered the most attention in recent days is the shocking photos of skeletal children on the verge of death. The UN reports that 12 to 13 million people are at the brink of starvation and of them, 1.8 million children in Yemen are malnourished with 400,000 near death due to severe acute malnutrition. Save the Children estimated that 130 children died per day in 2017 alone. Despite the clear and urgent necessity of the Yemeni people, both sides of the conflict unlawfully have impeded the delivery of humanitarian aid. The coalition airstrikes have hit homes, hospitals, markets, schools, and mosques, wounding and killing dozens of civilians at a time. According to Human Rights Watch, many of these strikes may amount to war crimes. Furthermore, the Houthi Saleh forces have used landmines and indiscriminately fired artillery into Saudi Arabia and Yemeni cities while the Saudi coalition has used cluster munitions killing and wounding civilians. Furthermore, the number of disappeared and arbitrarily detained civilians continues to grow. International actors besides the coalition are involved and culpable for the destruction and bloodshed in Yemen. The US provided air-refueling as well as training and advising the Saudi military to assist in targeting. The UK provided training, weapons, and diplomatic support to the Saudi coalition. According to Oxfam, the majority of civilian casualties are the result of Saudi-led attacks. And yet, the US, UK, and France continue to provide the Saudis assistance. It was a U.S. bomb the Saudis used when they chose to take the lives of 40 children riding on a school bus in August. Despite the clear and brutal consequences of the civil war in Yemen, international actors continued to support the coalition until very recently. In an unexpected turn of events, the UK and the US are now calling for a ceasefire in Yemen, marking a reversal in policy. The change of heart stemmed from international outrage at the ongoing humanitarian crisis, in tandem with the Saudi government’s premeditated brutal murder of Khashoggi.  The murder both symbolized the impunity and repression he fought against, as well as the potential power of one dissident’s voice to end a war. Little did Khashoggi know that when he entered the Saudi consulate on October 2nd, 2018, he would give his life to save potentially the lives of millions of Yemenis. In a final act of rebellion, Khashoggi may have catalyzed the end of the civil war, and forced the unprecedented withdrawal of US support to Saudi Arabia, a long-time key Middle East ally.

Article by Karin Bashir On October, 12th, a caravan of migrants from Sad Pedro Sula, Honduras began their journey to the United States.  The caravan gained both members and international attention as migrants from Guatemala and El Salvador joined the march. The caravan consists of approximately 7,000 migrants and UNICEF estimates that around 2,500 of them are children. They embarked upon the treacherous journey of thousands of miles to the US in order to flee political persecution, violence and destitute poverty in their home countries. Yet despite the images of the elderly, bloody-blistered feet, and young children- Trump once again, has used fleeing migrants to incite anti-immigrant sentiment and  responded by twitter claiming “bad thugs” and “gang members” are “invading” by way of the caravan. Both the mass exodus of migrants and the State’s response of criminalization bare striking resemblance to the mass migration of refugees in Europe which took place in 2015.  Similar to the caravan, thousands of refugees fleeing persecution entered in massive groups crossing through the Balkans hoping to find safety and a future in the EU. European countries like Greece, Germany, and Austria (each the size of a US state) individually took in the thousands of refugees crossing by land and sea. While the refugee crisis in Europe slowly evoked resentment leading to tightened borders, their reaction looks to be the picture of tolerance in comparison to Trump’s preemptive response. Consider that in 2015 alone, over 79,000 migrants entered Greece on their way into Europe. Yet in the face of a few thousand, Trump has decided to respond with violence.  Trump aggressively stated that unless the caravan stops, he will cut off foreign aid to the region and in violation of international law, he is planning to deny Central Americans the opportunity to seek asylum. Further, he launched Operation Faithful Patriot sending what may grow to 15,000 troops to the border ordering them to respond to potential rocks thrown by migrants with gunfire. Just to reiterate- if one of the children of the caravan throws a rock, Trump, our commander in chief, wants soldiers to shoot the child—an act once again in clear violation of international law. With the caravan nearing the border and Trump’s plan of action changing by the day, there is no telling what will happen when the exhausted women, children, and men arrive at our doorstep. We can only hope that international and internal pressure will force bigotry and baseless fear to step aside and finally make way for human rights.

Article by Alix Vadot In today’s world, where all of us are so interconnected, we have a reached a point where some of the products we use or consume on a daily basis can likely be traced back to some degree of social, environmental or human rights violation. In the wake of the neo-liberal economic model, which put an emphasis on financial sector deregulation, trade liberalization, and privatization of state functions and enterprises, corporations worldwide gained immense power and started taking advantage of developing countries that strengthened legislation to protect investments and weakened labor and environmental laws to attract foreign direct investment. (See here). It is subsequently in these same countries that some of the gravest human and environmental rights violations occurred and persist to this day. Civil society organizations, political actors, and legal scholars around the world are seeking a solution to ensure corporate social responsibility (CSR) moves in the right direction. The debate around corporate social responsibility revolves around two approaches. The first is the voluntary model of businesses implementing their own best practices, also known as the ‘business case’ for corporate responsibility. In contrast, the regulatory view promotes the notion that corporations that have recognized legal rights must also bear certain legal duties. (See here). Some international treaties and guidelines currently exist, although they are legally non-binding and serve instead as general codes of conduct recommended for multinational corporations. These include the Organization for Economic Cooperation and Development (OECD) Guidelines on Multinational Enterprises (MNEs), the International Labour Organization’s (ILO) Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, and other soft law treatises such as the European Convention on Human Rights and the International Bill of Human Rights. One of the most important developments, along with the OECD Guidelines, is the Global Reporting Initiative Standards, a set of guidelines focusing on social, environmental and economic standards that multinational enterprises (MNEs) worldwide should strive to meet. Furthermore, according to the Business and Human Rights Resource Center, more than 240 enterprises follow their own guidelines and 5200 or more companies are listed as members of the UN Global Compact. This global compact is aimed at encouraging businesses to respect universal principles of human, labor and environmental rights, as well as anti-corruption practices. (See here) Civil society organizations and NGOs agree that the voluntary model of corporate responsibility, whereby businesses strive to meet basic human and environmental rights standards as a means to increase profit, has not proven to be effective and is not sufficient to ensure adequate responsibility. In Corporate Human Rights Responsibility: A European Perspective, Jan Wouters and Leen Chanet, set out a framework to address this problem. First, they propose a legal framework to enable an effective implementation of the voluntary model of CSR.  Part of this could be achieved through a better system of transparency within the corporate world. This would ensure that potential customers have easy access to credible information about the corporation’s corporate human rights behavior. Under international law, this might include mandatory reporting laws as well as laws on misleading advertising, to ensure corporations do not lie to the general public regarding their responsible activities. Furthermore, universal corporate responsibility might be achieved by taking corporate human rights behavior into account when making public procurement decisions, thus adding an additional incentive for MNEs to be as responsible as possible. To follow, Wouters and Chanet also introduce a preliminary framework for a system to provide redress and deterrence, to be used in cases where the enabling framework set out previously fails. Two avenues exist for redress. In civil liability proceedings, states would bring claims against corporations in various courts to receive monetary compensation for damages. In criminal accountability proceedings, however, companies against which claims are brought risk high media attention about their rights abuses, causing them to lose profit. In Europe, civil liability proceedings can be brought under the 1968 Brussels Convention (also known as the Brussels I Regulation), which allows plaintiffs to bring claims within courts of EU Member States for cases against corporations registered or domiciled in the EU when damage occurs abroad, particularly in developing countries. This is permitted even when the victims are not themselves residents of the EU. This provision is useful because it allows plaintiffs to forum shop. For example, a plaintiff may choose to bring a claim in the UK, where class actions for human rights violations are allowed, unlike in other European states. Although the Brussels Convention forms a useful framework, it is not used frequently. This is because there are less favorable procedural laws in Europe than in the U.S.. For example, in Europe the party that loses a suit is burdened with its own as well as the opposing party’s costs and there is a lack of contingency fee arrangements, which makes litigation a very high risk. In the U.S., corporate accountability suits can be brought under the Alien Tort Act for human rights violations caused by US corporations abroad, for crimes involving the “law of nations.” To this date, however, only 36 suits have been brought against multinational companies in US District Courts, 20 of which were dismissed on the basis that the crime did not fall within the scope of law (which includes torture, genocide, crimes against humanity, and summary executions). Meanwhile other suits were found for the defendant, were settled out of court, or are still pending. Criminal accountability proceedings, which could be brought in national courts or in the International Criminal Court, could also become a useful strategy if human and environmental rights violations were to be criminalized as are human trafficking and child exploitation, for example. This would lead to better compensation for the victims, an ease of the burden of proof on plaintiffs, and a high deterrence for the specific crime. Other scholars advocate for a new economic model, rather than legal sanctions, to change the economic system to one that values human and environmental health over profit. In any case, the system must shift to allow for better incorporation of human rights, labor, and environmental standards in multinational corporations’ practices all over the world. A universal UN human rights system could accomplish this, as well as the continued work of civil society organizations to campaign for a new perspective on business. The role of in-house counsel is also crucial: they can ensure that companies do not merely respect the laws in place but go further to encourage their employers to set an example for how best to balance profits and public interest.

Article by: Yasir Gökçe The massive crackdown that the Erdogan regime has initiated particularly after the coup attempt in July 2016 resulted in heavy consequences for people who identify themselves as critical to the Erdogan regime, the best-known of whom are the followers of the Gülen Movement, a social and religious group led by self-exiled Turkish cleric Fethullah Gülen. (For an excellent analysis of the July 15 coup attempt, see here). The Erdogan regime holds him and his followers responsible for the failed coup while he denies any involvement whatsoever and calls for an international investigation into the matter (see hereand here). The US has so far refused the Erdogan regime’s demands for Mr. Gülen’s extradition on the basis of the evidence being insufficient or irrelevant (see here). One of the means Ankara has employed with a view to prosecuting the Gülen sympathizers in domestic courts is abductions. This piece aims to address the issue of whether extraterritorial abduction of Turkish individuals carried out by the Erdogan regime are legal under international law. The highest-ranking Turkish officials’ public statements indicate that extraterritorial abductions appear to have become a pattern for Turkey in its extraterritorial application of criminal law. Since the failed coup, reports show that Ankara abducted or attempted to abduct Turkish citizens from at least 18 countries. Lastly, Turkey’s presidential spokesman, said during a press conference that the Turkish government would continue its global kidnapping operations for followers of the Gülen movement, adding that the operation could extend to the United States as well. He also stated that this sort of operations had been carried out under the “very clear instructions of Mr. President.” An attempted armed entry into Mr. Gülen’s compound in Pennsylvania, US took place on the heels of this statement. First of all, it should be born in mind that the internationally accepted way of physically bringing a wanted individual within the jurisdiction of a state seeking the individual is extradition. There are extradition treaties in place between Turkey and some states such as Mongolia or Pakistan in whose territories abductions took place. Here, one must note that what makes extraterritorial operations problematic under international law is not that Turkey has made no use of the means extradition treaties bestowed upon her, but that Turkey has been conducting operations within the territories of the respective states without their prior consent. Violation of the territorial sovereignty and a possible justification: Self-defense? The statements made by the representatives of the respective states indicate that Turkey seems to have carried out its extraterritorial operations in those states without their prior endorsement. For instance, the Mongolian Foreign Service denounced the abduction attempt as an “unacceptable act of violation of Mongolia’s sovereignty and independence.” Likewise, in Kosovo, the Ministry of Foreign Affairs published a statement strongly denouncing the abductions as “direct contradiction to international norms”. On the other hand, the Erdogan Regime’s operations in Pakistan and Malaysia appears to have received tacit approval of the then Nawaz Sharif and Najip Razak governments respectively, given the respective authorities’ contribution to the success of the operations. It would be pertinent to assert that Turkey violated the rules prohibiting intervention and the use of force as well as the sovereignty of the states where Turkey conducted the extraterritorial abductions without their prior consent. Although Turkey has never attempted to justify the said operations under international law and even denied any involvement therein, the Erdogan Regime occasionally advances that its relentless pursuit of the Gülenists anywhere arises out of its right to self-defense, denoting to its unsubstantiated allegation that Mr. Gülen orchestrated the coup attempt (see here). In the light of the aforesaid, a possible justification might be self-defense. In justifying Turkey’s operations, one might assert that it acted in the face of an armed-attack which as the Erdogan regime puts was launched on the evening of the July 15 by the FETÖ, a derogatory abbreviation used by the Turkish Government to define the Gülen Movement. The evidence set forth by Ankara so far to link the coup attempt with the Gülen Movement is notably insufficient and circumstantial. (For an excellent post on the extent to which the evidence are credible, see here). But, for the sake of argument, even though it is assumed that the Movement was behind the coup attempt, Turkey has not so far adduced any finding which renders one to reasonably suspect the taking part of the abducted individuals in the coup attempt. Given that they had been living in the respective states since years before the night of the coup attempt as educators, such an assertion would be one very hard to substantiate. Turkey’s assertion that the abducted individuals are “terrorists” who continued to pose threat of further attacks entails one also to examine whether the extraterritorial abductions are legal under the doctrine of preemptive self-defense. According to Article 51 of the UN Charter, an armed attack must occur in order for the victim State to invoke its right to self-defense. Assuming that the armed-attack on which Turkey bases its self-defense argument is the July 15 coup attempt, such an armed-attack can fairly be said to be over. That said, the threat of attack the abducted individuals allegedly posed must be ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’ (see Letter from Daniel Webster, 29 British and Foreign State Papers 1137), in order for Turkey to be entitled to invoke its customary right to preemptive self-defense. Although the Erdogan regime tends to pin the blame for anything bad occurring in Turkey on the Gülen Movement, from the Turkish Lira’s depreciation to earthquakes which stroke various Turkish cities, the threat of a further attack which might, according to the Erdogan regime, be launched by the said group is worth attention for the sake of argument. In order for Turkey to aptly rely on the preemptive self-defense plea, it must first demonstrate that it is under an imminent, instant and overwhelming danger of attack compelling it to react in that very moment, because otherwise it would have to suffer the devastating consequences of a would-be attack which the abducted individuals was potentially to launch. One may assert that the fact that Turkey abducted the educators as opposed to choosing to kill them renders the operations proportionate. Nevertheless, Turkey has thus far failed to prove the imminence of a prospective attack, if any, to be initiated by the abducted individuals. Likewise, why the extraterritorial abductions are the only available or the most effective means to address the peril of attack is yet another question raised by the controversial operations carried out by Turkey. Violation of human rights law governing the right to liberty The extraterritorial abductions are a form of deprivation of liberty. Intervention to the right to liberty is in compliance with international law so long as such deprivation is not arbitrary. Under Article 9 of the ICCPR and Article 5 of the ECHR, deprivation of liberty is arbitrary in case it is not based on grounds and procedures prescribed by law. Both articles stipulates that an individual who is arrested shall be informed, promptly or at the time of arrest, of the reasons for his arrest and of any charges against him. Likewise, according to the articles, the arrested individual has to be brought promptly before a judge or a similar judicial authority within a reasonable time. Whether Turkish operatives who conducted the abductions promptly informed the educators of the reasons for their arrest along with the charges against them is unknown. But, the facts that they did not appear before a Turkish court even months after their apprehension and that even their immediate relatives do not know their whereabouts, suggest otherwise. Any affiliation with the private schools, financial institutions, trade unions, media organizations, or NGOs operated by the Gülen Movement is considered evidence sufficient for one to be convicted of terrorism charges under the Erdogan regime (see here). Therefore, abduction and the subsequent detention of individuals linked to the Gülenist schools abroad may not surprise one who is well acquainted with the Turkish politics. In the face of this bitter reality, it is difficult to conclude that the abducted individuals’ arrests and detentions are carried out ‘on such grounds as are established by law.’ A Brief Bio of the Author: Yasir Gökçe is currently a Ph.D. student in the Bucerius Law School in Hamburg, focusing on the application of the law of the use of force to cyber domain. 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: Adnan Toric, JD 2021 Background As the world nurtures a global village and displacement due to conflict grows, caring for the world’s displaced villagers becomes more apparent. Displacement is at a record high. It does not just impact people removed from their homes but the entire world feels its economic effects. The global community must figure out the most effective means of dealing with displacement and refugees. Furthermore, the global community must determine whose obligation it is to deal with the issue long term. Often, States cannot solve the problem or feel that it is not their obligation. While some actors have tried to resolve issues of displacement by opening borders to those in need, the root cause of the issue is left open, with States unsure about their obligation to the displaced. Addressing the Cause The international community’s problems with displacement include politics, resources, and confusion. First, direct involvement presents various issues. It is difficult to rationalize a non-involved State imposing its actions and paradigm on another, especially when political ties are involved. Multilateral actors have sufficient problems justifying and executing their own involvement, much less an individual actor. Inherently, there are conflicts of authority and questions of sovereignty, causing both debate and ensuing chaos. Furthermore, the direct involvement of non-involved actors can complicate problems and ignore the root cause of displacement. On the other hand, States offering aid to refugees seems like a simple and less political solution; it allows aid without potential conflict on a non-involved State’s side. However, simple aid leavesdeveloped nations with an unequal share of harboring people who are forcibly displaced. Whether it is the obligation of developed countries to deal with the majority of issues of displacement is a different question. Regardless, if the majority of States do not address the weight of displacement and the numbers of displaced peoples grow, then the discontent among developed countries will likely flourish. Discontentment between States is hardly productive, especially when discussing economic and global burdens. The Real Obligation of States The best solution for displacement is legal reform. Each State need to make its legal system flexible and inclusive in regards to potential forced migrants entering its territory. This approach works on two levels: it gives the displaced a safe space to migrate and it prevents displacement from occurring in that country. The continuous obligation and issue for States is accountability. Accountability is as essential in the case of displacement as it is in human rights abuse issues. Likewise, the two issues are usually causally linked. Even a post-reform State that has taken steps to accommodate the displaced is susceptible to the same issues that cause displacement unless there is a mechanism of accountability. Accountability comes from all levels of the government in the State as well as through multilateral organizations like the United Nations (UN). States have numerous options for promoting ways to deal with displacement. First, legal programs can help the displaced learn about their status and options. The most important thing for those that are displaced after finding refuge, is understanding what can be done. Also, legal aid programs dedicated to displacement further assist the displaced by helping them establish livelihoods in the receiving State. It is not sufficient for a State to just allow the displaced into their territory without providing some transitional aid. Programs like these are small steps that profoundly impact the lives of those that are displaced. Another great example of addressing the issue of displacement is the UN’s adoption of the New York Declaration for Refugees and Migrants. Member States must acknowledge and utilize the rule of law as means to address the root cause of displacement. Within the agreement, equality, good governance, and human rights are addressed. These concepts are inherently tied to goals of larger change in addressing mass displacement. Sheltering refugees and migrants is a great solution for the temporary crisis of displacement, but to stifle the growth and root cause requires more capacity-based change. There are several practical waysthat the UN can achieve its goal. The UN’s ability to foster and support legal reform internationally is pivotal to effective change in the displacement crisis. The UN would be a great organization to aid in accountability as well. The support and oversight of a large multilateral organization provides adequate resources and points of reference for States. The issue of displacement is not simple nor easily solved. The continuous consideration and action of each individual State will severely undercut the impact of displacement.

Article by: Ishita Chakrabarty Introduction The proposal made by several nations during the Rome Conference, to give the International Criminal Court [‘ICC’] subject-matter jurisdiction over treaty crimes failed after a comparative analysis against core crimes. (See, Findlay, M., Kuo, L. B., & Wei, L. S. (2013). International and comparative criminal justice: A critical introduction. New York: Routledge, 88-89). The ICC intends to exercise its contentious jurisdiction only with respect to the ‘most serious crimes of concern to the international community as a whole’. Thus, the jurisdiction of the Court is limited to the core crimes mentioned under articles 5 (1) (a)-(d). This article intends to show that the ICC’s jurisdiction can be extended to treaty crimes wherever necessary to meet its objective and reasons. Justifying the Inclusion of Treaty Crimes It is widely accepted that the Court does not function as a “panacea for all ills” and the enforcement of treaty crimes is left to the State’s law enforcement agencies (See, Paola Gaeta, International Criminalization of Prohibited Conducts in Antonio Cassese (ed.), The Oxford Companion of International Criminal Justice, Oxford University Press, 2009, p. 63). The primary reason for leaving treaty crimes to State enforcement is because they have not yet found their way into customary international law. Even if treaty crimes were permitted under customary international law, only crimes committed on the territory of contracting parties (to the relevant treaties) would be punishable (See, TRIFFTERER, O. & AMBOS, K. (2016), The Rome Statute of the International Criminal Court: a commentary, 113). All these reasons are problematic for the following reasons: Firstly, the ICC is supposed to primarily rely on its own Statute and draw on externalities on ‘clear methodological grounds.’ In other words, the application of principles of customary international law which have developed over a considerable period of time may be used only if it is fitting the court’s own jurisprudence (See, Volker Nerlich, The status of ICTY and ICTR precedent in proceedings before the ICC, in Carsten Stahn and Goran Sluiter (eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, 2009, p. 325). I would cite a few examples here. The Statute differs from its ad-hoc counterparts in the inclusion of phrases such as ‘for the purpose of facilitating’ as a precursor to liability under aiding and abetting, which otherwise requires only knowledge (See, S Finnin, Mental Elements under Article 30 of the Rome Statute of the International Criminal Court: A Comparative Analysis, 61 International & Comparative Law Quarterly 325, 354 (2012)). Further, the ad-hoc tribunals also dismiss any policy requirements as part of their chapeau elements with respect to Crimes Against Humanity (CAH) under the belief that such policy is not a requirement under customary international law. The Rome Statute on the contrary, mandates a state or organizational policy to convert ordinary crimes into CAH. Also, even though the ICC Statute might reflect state’s opinio juris, Article 7(1)(h) of the Statute (the crime of persecution) is not considered customary international law. Again, though the definitions of crimes under the Statute may vary with the existing definitions under international law, Article 10 of the same statute emphasizes the drafters’ intention to not affect, prejudice or limit the existing definitions. It empowers the ICC to base its decisions on internationally recognized human rights. Secondly, one could recourse to Article 7(1) (k) of the Statute that allows the inclusion of “other inhumane acts” as a CAH. The interpretation of Article 7(1)(k) reveals that “other inhumane acts” is an international crime by itself and its specific categories need not be separately criminalized. Article 7(1) (k) keeps the possibility of adapting the Statute to new forms of cruelty, by focusing on actions and not substances. One of the most important developments in the ICC in this regard came with the case of Dominic Ongwen, where forced marriage (otherwise considered in consonance with sexual slavery and rape) was charged as a CAH under Article 7(1)(k) of the Statute. This example again shows that treaty crimes – if they fulfill the requirements of a ‘widespread and systematic attack” – could fall under the broad sweep of Article 7(1)(k). Thirdly, treaty crimes exist in the Rome Statute under different nomenclatures, either as a CAH or as a War Crime, such as Apartheid. Some jurists believe the ICC favors thematic prosecutions with regards to offences that have been under enforced, such as those relating to sexual violence or the use of child soldiers in conflicts. One jurist argues that the ICC’s structure allows it to prosecute crimes which may not be universally regarded as such but equally deserve to be condemned. Finally, the ICC has adopted a cautioned approach towards excessive reliance on the traveaux, especially where the provisions were purposely formulated to avoid too much precision (See, SINCLAIR, I. M. (1984). The Vienna Convention on the Law of Treaties. Manchester, Manchester University Press, p. 142). For instance, the traveaux fails with subject matters that were likely dropped because of time constraints, such as issues regarding the liability of legal persons. For these reasons, it would do good to focus more on the statutory language and revert to the traveaux only where imperative. Living up to its commitment to address the ‘the most serious crimes of concern’ Take the case of the post-election violence in Kenya for instance. The ICC stood up to the defense’s contention of recognition of post-election violence acts as a “gradual downscaling of seriousness.” At the same time, they authorized investigations on the ground where the acts committed by an association of individuals such as business men, politicians and local leaders, could not be classified as isolated acts or incidences of sporadic violence. Similarly, the Pre-Trial Chamber authorized investigations in Darfur, Sudan, where the defendant killed about twelve peacekeepers and wounded eight other victims- a comparatively low number of direct victims. A similar reasoning was adopted in the situation in Georgia in the context of gravity. The authorization showed the intention of the court to engage on a qualitative analysis rather than a quantitative analysis of gravity which is often ambiguous. Several others opine that the court should evaluate the entire context of the act, or “situational gravity” and whether the acts as a whole gives rise to social alarm in the community. The acts which otherwise fulfill the requirements of systematism or organizational policy must not be left unexamined merely because an identified perpetrator’s acts may lack the specific threshold (See, Heller, K. J. (2009), Situational gravity under the Rome Statute, in C. Stahn & L. van den Herik (Eds.), Future perspectives on international criminal justice. The Hague: TMC Asser Press). National systems are prone to violence, intimidation, and bribery from members of the state system itself and from organized groups who engage in treaty crimes. The ICC could always attempt to strike a balance between removal of this impunity and any concerns about unduly encroaching the sovereignty of any state by taking recourse to principles of ‘positive complementarity’. Joshua Lam in his articleprovides a perfect example by recalling the situation in Guinea. In that case, the ICC oversaw the domestic investigations and prosecutions and analyzed whether they were compliant with internationally recognized standards. This way, the opposition from the states could also be reduced on the exercise of its jurisdiction. Conclusion It is imperative to interpret the Statute in favor of inclusion of at least those crimes whose perpetration has overarching implications for the wider community or are in the nature of delicta juris gentium. To allay any fears of injustice, it must be noted that the ICC’s exercise of jurisdiction over treaty crimes would not be problematic since it is highly unlikely that the actor would be ignorant that his acts possess elements of criminality. For instance, the commission of acts amounting to terrorism would involve terrorizing civilians, causing ‘great pain and suffering’ and acts of like nature. The actor is then warned of the criminal act and cannot plead that he had no notice. About the Author: Ishita Chakrabarty is currently in the fourth year of her study at Hidayatullah National Law University, Raipur, India. She holds a penchant for International Humanitarian Law and International Criminal Law and wishes to pursue them as her Masters subjects. She previously authored and published an article with the Queen Mary Law Journal and interned in the capacity of a student researcher with Justice Indu Malhotra, Judge, Supreme Court of India and at the Commonwealth Human Rights Initiative.

Article by Fabian Unser-Nad The case of dissident journalist Jamal Khashoggi, who had gone missing on 2 October 2018, after he visited the Saudi Arabian Consulate in Istanbul to obtain marriage papers, is just the latest example of a “new and very worrying” practice of States abducting individuals beyond their own borders, namely enforced or involuntarily disappearance. Under the Declaration on the Protection of All Persons from Enforced Disappearance, an enforced disappearance occurs when a “persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.” Enforced or involuntarily disappearance is a particularly heinous violation of human rights. Victims are people who have literally disappeared from their loved ones or their community. Often, they are never released, and their fate remains unknown. Furthermore, their family and friends experience distress, not knowing whether the victim is still alive, and if so, where s/he is being held, under what conditions, and in what state of health.  In the case of Mr. Khashoggi, Saudi Arabia admitted on 19 October 2018 after two weeks of denial, that dissident journalist Jamal Khashoggi died in a fight. However, his family and the world deserve to know the truth. Under human rights law, States have the duty to provide an effective remedy, and investigation and prosecution should rest on an effective and independent judiciary. Saudi Arabia has a duty and obligation to ensure effective remedy without undue delay and a prompt and impartial investigation into the enforced disappearance and killing of Mr. Khashoggi, hold the perpetrators accountable and end impunity.