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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.

Article by Minsoo Kim East Asian International Relations (IR) is a paradox; in the wake of rising nationalism and territorial disputes, instability has marked these relations despite increasing economic interdependence. Northeast Asia lacks an effective institution for multilateral security cooperation, such as the Organization for Security and Co-operation in Europe (OSCE) or the North Atlantic Treaty Organization (NATO). In the post-World War II period, the United States (US) created a hub-and-spoke security framework of US-centered bilateral relationships. From 2003 to 2007, the six-party talks between the US, North Korea, South Korea, Russia, China, and Japan, created an ad-hoc multilateral security cooperation aimed to address security concerns raised by the North Korean nuclear weapons program. However, it is quite clear that such efforts failed to produce the desired compliance with international norms. A brief inquiry into the history of international nuclear nonproliferation norms and North Korea’s refusal to abide by them, as well as the various foreign policy strategies both suggested and critiqued, will better equip us to think critically about the North Korean nuclear issue. Multilateral Treaties on Nuclear Nonproliferation and Disarmament The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) aims to “prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament.”The NPT entered into force in 1970, and in 1995 was extended indefinitely. 191 States have ratified this binding treaty, more than any other arms limitation and disarmament agreement. The International Atomic Energy Agency (IAEA) is responsible for a safeguards system, which is used to verify compliance through IAEA-led inspections. There have been other multilateral treaties established with the goal of nuclear nonproliferation, including the Partial Test Ban Treaty (PTBT) of 1963 and the Treaty on the Prohibition of Nuclear Weapons (TPNW), which opened for signatures in 2017 but has not yet taken force. North Korea and Nuclear Nonproliferation North Korea has long viewed nuclear weapons as a solution to their geopolitical insecurities. Following the collapse of the Soviet Union in 1991, North Korea struggled to adjust to the new international political situation. Economic difficulties weakened its conventional military weapons systems, forcing Kim Il-Sung to turn to nuclear weapons to survive. North Korea had already been developing nuclear technology with its own mines and reactors when it signed the NPT in 1985. The IAEA began inspections in 1992, but it found inconsistencies with North Korea’s initial declaration regarding the existence of undeclared plutonium. North Korea subsequently blocked inspectors and threatened to withdraw from the NPT. The US resumed negotiations with North Korea, leading to the 1994 Agreed Framework. Under this agreement, North Korea was to freeze its nuclear facilities in return for US provision of conventional fuel and two light-water reactors incapable of producing potential weapons-grade fuel. In 2002, North Korea confirmed a secret “programme to enrich uranium for nuclear weapons,” and the US subsequently withdrew from the Agreed Framework. North Korea kicked out IAEA inspectors, and in 2003, withdrew from the NPT. The Bush Administration sought a multilateral approach and established the Six-Party Talks in order to utilize Chinese influence on North Korea to rack up regional pressure. There was not much progress until the 2005 Agreement, in which North Korea agreed to denuclearize, return to the NPT, and allow IAEA inspections. The other five parties agreed to take steps for diplomatic and economic normalization and to provide energy. Implementation floundered after the US froze North Korean accounts at Macau’s Banco Delta Asia, accusing them of money laundering. North Korea conducted its first nuclear test in 2006, which set off United Nations Security Council Resolution (UNSCR) 1718 imposing sanctions. The US responded with their first bilateral negotiations with North Korea, leading to a resumption of the Six-Party Talks. North Korea agreed to disable its nuclear facilities, report nuclear activities, and allow verification. However, conflict over verification methods led to a breakdown in the talks in 2008. North Korea conducted its second nuclear test in 2009 at the start of the Obama Administration, prompting additional sanctions under UNSCR 1874. Amidst increasing tension, bilateral contacts between the US and North Korea in 2011 led to the 2012 Agreement, in which North Korea agreed to a moratorium on nuclear tests, long-range missile launches, and uranium enrichment activity, and allowed international inspections, all in return for US food aid. However, North Korea conducted its third nuclear test in the spring of 2013, prompting further sanctions under UNSCR 2094. North Korea continued its aggressive nuclear development strategy, conducting its fourth and fifth nuclear tests in 2016, and its sixth test in 2017. The 2016 tests led to UNSCR 2270 and UNSCR 2321, while the 2017 test prompted UNSCR 2375. The latter UNSCR strengthen oil sanctions, banned overseas sales of North Korean textiles, and further restricted North Korean labor exports. Foreign Policy toward North Korea The United States The US has employed the various foreign policy strategies throughout its 25 years of bipartisan failure on improvement of US-North Korea relations. Although President Trump’s foreign policy has been difficult to label besides as isolationist, some have called it “realist,” while others have called that assignment an error. A little easier to ascertain is the fact that that President Trump groundshis foreign policy heavily on his self-confidence as a “master negotiator who can strike deals where his predecessors failed.” This potentially ill-founded commitment to personal negotiations premised on whether he could “look into his eyes and see if we have a deal” is a marked departure from the neoconservative moralistic approach of withholding negotiations and wielding sanctions and military threats to force regime change. There are concerns, however, that President Trump’s confidence in his personal relationship with Kim Jong Un risks ignoring recent history replete with instances of failed negotiations and North Korean refusal to abide by its own commitments. Indeed, it remains to be seen whether further talks will produce workable, concrete terms and deadlines or whether it will end with the nebulous Singapore Summit alarmingly reminiscent of the failed agreements of the past. Victor Cha, a  prominent scholar and former director for Asian Affairs at the National Security Council, has called on the Trump Administration to include human rights issues in negotiations over denuclearization, as he suggests that North Korean efforts to improve human rights conditions would evince a strong commitment to reform and join the international community, and that “this could make more credible any actions they take on the denuclearization front (with outside verification).” South Korea According to Foreign Minister Kang Kyung Hwa, South Korea might consider lifting some of its own sanctions to incentivize North Korea to denuclearize. President Moon is a firm believer in the more liberal approach of engaging with North Korea on different fronts while using sanctions to bring them to the negotiating table. Professor Young Kwan Yoon, former Foreign Minister of South Korea, has described President Moon’s foreign policy as some form of the “Sunshine Policy” or South Korean Ostpolitik, a variation of West Germany’s policy of direct engagement with East Germany. Trust-building measures such as inviting a North Korean economic mission to the US would be an important gesture to promote political reconciliation and would not detract from US leverage in economic sanctions. Critics of this approach have pointed to its detrimental effects on sanctions credibility and its passive stance on demanding “complete, verifiable, and irreversible dismantlement” (CVID). China China’s foreign policy centers around its core interests of state sovereignty, national security, territorial integrity, basic safeguards for ensuring sustainable economic and social development, among others as laid out in its 2011 whitepaper. Accordingly, China views North Korea as an important buffer state against American and Japanese influence. Zbigniew Brzezinski claims that Chinese policy aims to “use American power to peacefully defeat American hegemony, but without unleashing any latent Japanese regional aspirations.” Although North Korea’s increasingly brazen nuclear tests created internal discomfort within China, especially as the third nuclear test coincided with the beginning of Xi Jinping’s first term, China has abandoned “maximum pressure” and has increasingly aligned more closely with North Korea and Russia. The US trade war with China is not helping. Recently, tough Chinese enforcement of sanctions had significantly dampened North Korea’s economy. However, a mix of North Korea’s reconciliatory 2018 New Year’s speech and unprecedented summits with Xi, Trump, and Moon, have led to a loosening of sanctions. Cross-border trade with China is picking up, and China and South Korea have promised large scale economic assistance. Conclusion North Korea continues to violate international norms and mandates. It has violated the aforementioned bans on oil and textiles. We must not forget that denuclearization is an obligation for North Korea; it is a member state of the UN under binding directions from the Security Council to completely denuclearize in a verifiable and irreversible way. In  light of its frequent past defections from international agreements, current mistrust of North Korea is understandable. Although President Moon, based on his assessment of North Korea’s economy as desperately weak, has recently reiterated his confidence in Kim Jong Un to follow through with his pledge to denuclearize, establishing a framework leading to CVID of North Korea’s nuclear weapons program remains a daunting task for Mike Pompeo and Stephen Biegun. There seems to be no clear-cut answer to this problem, but international cooperation and coordination between the US, China, South Korea, and Japan, is necessary to bring North Korea into compliance with international treaties and norms.

Article by Sela Brown, JD 2021 In September, Argentina, Chile, Colombia, Paraguay, Peru, and Canada signed a letter asking the International Criminal Court (ICC) to prosecute Venezuelan officials for human rights abuses. This surprising move is the first time that member nations have referred another member nation to the ICC. Under Article 14 of the Rome Statute, state parties have the power to refer the Court to situations where crimes are believed to be occurring, and request that the Prosecutor investigate whether certain crimes (e.g. genocide, war crimes, crimes against humanity) are taking place. However, the ICC has never opened a case brought by one country against another. In Venezuela, the current economic and political crisis has led to a massive migration of millions of Venezuelans to surrounding Latin American countries. Although Latin American countries have historically refrained from intervening in the politics of neighboring countries, the influx of migrants has strained their economies, as well as their health and education systems, forcing them to take action. Role of the US The United States sanctioned Venezuelan officials for corruption, and U.S. President Donald Trump hinted at a possible need for a “military solution” to remove Venezuela’s President  Nicolas Maduro from power. In September, Maduro spoke at the UN General Assembly, attacking the U.S’s allegations of corruption and imposed sanctions on his wife and Venezuela’s vice president, among others. Maduro claimed that the current migration crisis in Venezuela was a media “fabrication,” and that the U.S. only threatened military intervention because they wanted to get involved in Venezuela’s affairs. ICC already Investigating Venezuela In February, the ICC opened a preliminary investigation into the human rights abuses in Venezuela. The ICC Prosecutor announced that she was examining the violent state response to political demonstrations in 2014 and 2017 when Venezuelan security forces committed violent crackdownsagainst anti-government protestors, injuring, severely torturing, and detaining thousands of civilians. In September 2017, the UN High Commissioner for Human Rights called for an international investigation into the crimes that may have been committed in Venezuela. The legitimacy of the ICC The International Criminal Court is a court of last resort, founded with the goals of ending impunity by holding perpetrators who commit grave crimes against humanity accountable. The United States recently called into question the legitimacy of the ICC, with U.S. national security advisor John Bolton claiming that the ICC was “ineffective, unaccountable, and indeed outright dangerous.” Moreover, Bolton threatened that the U.S. would “fight back” if the Court began investigating alleged U.S. war crimes in Afghanistan or investigated any American allies. The ICC has extensive jurisdictional reach and independence, but it relies on the cooperation of member states, including leaders who may be prosecuted. The recent rise in nationalism, including President Trump’s proposals to cut funding to international organizations, could indirectly diminish the ability of the ICC to operate effectively. Although the ICC can investigate and prosecute nations for crimes, non-member states are not obligated to cooperate with ICC rulings. In 2016, Human Rights Watch asked the ICC to investigate Israel’s expansion of settlements, which is illegal under international law. However, as a non-member, Israel has no obligation to cooperate and can refuse to turn Israeli citizens over to the Court, if asked. The ICC also announced its intention to investigate the human rights abuses against the Rohingya, despite Myanmar not being a member state. Nevertheless, Myanmar’s leader did not respond to this announcement or the recent United Nations report concluding that the Myanmar military committed genocide while she was in power. This silence does not bode well for cooperation with a potential investigation into the human rights violations that have been taking place against the Rohingya. The refusal of powerful nations such as the U.S., China, and Russia to join the Court weakens its authority. Although the ICC has prosecuted international war crimes, the Court has also failed on numerous occasions to prosecute crimes both within its mandate and in non-member states. Veto power on the UN security council also impacts ICC investigations. While a special UN tribunal has gathered incriminating evidence on Syria’s Bashar al-Assad for years, the UN Security Council has not referred Assad to the ICC because Russia would veto such action. In sum, the wide mandate of the ICC often fails to hold perpetrators accountable for the very crimes it was established to prosecute. What does this mean for Venezuela? It is unclear what this means for a potential investigation and prosecution of the crimes that occurred in Venezuela. Since Venezuela is a member state of the ICC, perhaps Venezuela will cooperate and Venezuelan officials will be brought to justice. The pressure from the five other Latin American countries may lead to an ICC investigation and eventual prosecutions. The more likely scenario, however, is a situation similar to Myanmar’s reaction to international condemnation. Maduro already demonstrated that he intends to deny even the most easily provable events – the ongoing migration crisis. Venezuela could go even further and decide to follow Russia’s lead and withdraw from the ICCafter being condemned for human rights abuses. The actions of the ICC in the pending months and years will serve to answer whether the Court is indeed as “ineffective” as Bolton claims.

Article by Nick Reem, JD 2021 In April, United States (US) Attorney General Jeff Sessions issued a memorandum directing federal prosecutors to enact a “zero-tolerance policy” in prosecuting illegal entrants to the US, including asylum seekers and parents traveling with children. In practice, this policy involuntarily separated about 2,000 children from their parents. While the Trump Administration has since reunified a majority of these families per court order, hundreds of children remain in custody or separated from their families despite President Trump’s subsequent Executive Order prioritizing family unity. Sessions justified this policy through deterrence theory: “If you don’t want your child to be separated, then don’t bring them across the border illegally.” However, this false choice obscures graver concerns. The forced separation of children from their parents as a deterrent to illegal entry violates international law, and it is paramount to the interests of the United Nations (UN) as the primary promoter of human rights, to hold the US accountable for its violations. Pertinent International Law Foundational to the case that US family separation violates international law is the Universal Declaration of Human Rights (UDHR). While not a binding treaty, many scholars argue that the UDHR is customary international law by virtue of its frequent invocation, and such customary international law is binding on all states. In relevant part, Article 5 holds that “no one shall be subjected to […] cruel […] treatment or punishment.” Article 12 holds that “no one shall be subjected to arbitrary interference with his […] family […]”. Article 14 holds that “everyone has the right to seek […] in other countries asylum from persecution.” And Article 16 holds that “the family is the […] fundamental group unit of society and is entitled to protection by society and the State.” Building upon the UDHR, the International Covenant on Civil and Political Rights (ICCPR) reiterates the human right to family and protection of children. The US ratified the ICCPR, therefore, it is binding international law on the US. Article 7 of the ICCPR holds that “no one shall be subjected to […] cruel […] treatment or punishment.” Article 17 reads: “no one shall be subjected to arbitrary or unlawful interference with his […] family […]”. Article 23 holds “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” And Article 24 holds that “every child shall have […] the right to […] protection as […] required by his status as a minor, on the part of his family, society and the State.” Finally, the Convention on the Rights of the Child (CRC) promotes children’s rights through the American family law framework that prioritizes the best interests of the child. The US is the only country not to have ratified the (CRC), although it is a signatory, and under the Vienna Convention on the Law of Treaties Article 2(1)(a), the CRC is likely binding on the US. The CRC holds in Article 7 that “the child shall [have] […] as far as possible, the right to know and be cared for by his or her parents.” Article 8 holds “state parties undertake to respect the right of the child to preserve his or her identity, including […] family relations.” And Article 9 holds that (a) “state parties shall ensure that a child shall not be separated from his or her parents against their will […]”; (b) “state parties shall respect the right of the child who is separated from […] parents to maintain personal relations and direct contact with both parents on a regular basis”; and (c) “where such [separation] results from any action initiated by a state party, such as detention [or] imprisonment […] of one or both parents of the child, that state party shall […] provide the parents [or] the child […] with the essential information concerning the whereabouts of the absent member(s) of the family.” Application of International Law to “Zero-Tolerance” Policy Cruel Treatment or Punishment At first glance, it is instinctually cruel to separate children from parents as punishment for illegal entry and is unjustified as a means of deterrence. This cruelty is apparent in the images of grief of these separations, the anecdotes of parents’ desperation to learn of their children’s welfare, and the detached mental state of children resultantly in US custody. The negative impact of these separations is amplified by the psychological literature detailing the short and long-term effects of forced separation on the psyche and development of the child. Children separated under the US policy are more likely to behave in anti-social ways, affecting their lifetime capacity for happiness and, ultimately, their economic productivity. The strict liability imposed under 8 U.S.C. § 1325(a) at the core of the “zero-tolerance” policy is unjustified when applied to minor children at the mercy of their parents’ decision to illegally enter. Subjecting children to such severe and lasting psychological harm constitutes cruel treatment or punishment under Articles 5 and 7 of the UDHR and ICCPR, respectively. The Sanctity of the Family Unit The UDHR, ICCPR, and CRC all speak to the universal importance of the sanctity of the family unit worthy of protection by society and the State. According to the UDHR, the concept of family is a necessary and stabilizing force. The Preamble of the UDHR begins: “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world […]”. The policy of forcibly removing children from their parents runs contrary to shared, universal values and human rights that the United States and the world are morally and legally bound to uphold. Such a policy runs counter to human instinct and must be met with more than mere words of condemnation. The “zero-tolerance” policy violates Articles 12 and 16 of the UDHR; Articles 17, 23 and 24 of the ICCPR; and Articles 7, 8 and 9 of the CRC. Moreover, the lack of effective recordkeepingand means of communication between separated parents and children violates Articles 8 and 9 of the CRC. Right to Seek Asylum Lastly, the UDHR affirms the human right to seek asylum and the obligation of a state to provide it. The US proved itself hostile to this obligation, as reports have surfaced of widespread and systematic denial of entry to asylum seekers on the US-Mexico border. Under new US policy guidance, asylum claims based on fear of gang or domestic violence have been automatically rejected. Denial of asylum violates Article 14 of the UDHR and promotes the very illegal entry the US purports to deter through its zero-tolerance family separation policy. Call for UN Action It is critical for the UN to take formal action against the hegemonic US if the UN is ever to be an effective steward of human rights. By directly confronting the US’s illegal immigration policies, the UN would remind the world that no country is above international law or the obligation to protect and advance human rights in order to promote “freedom, justice, and peace in the world.” Unfortunately, such action would necessarily be limited by the US’s permanent membership on the UN Security Council and veto power. Additionally, the US has demonstrated its antipathy toward the UN Human Rights Council through its withdrawal of membership in June, ostensibly over “anti-Israel bias,” but also at a moment of pointed criticism over the family separation policy. However, the UN has many tools at its disposal, including the ability to send a Special Rapporteur to investigate the crisis and issue a formal report of condemnation. While most options for enforcement of the US’s violations are limited, the confrontation itself is necessary and vital. Shaming tactics have had mixed results, but any action is preferable to no action. Subversion of the remnants of global goodwill towards the US would negatively impact the US’s ability to further its interests in a host of areas, including international investment opportunity and the resolution of the costly armed conflict in the Middle East. While measures such as formal sanctions are impossible, UN action could tangibly impact US primacy and serve a punitive function for the aforementioned violations and as a deterrent for future violations, including the Trump Administration’s current consideration of reenacting the child separation policy. Doing so would also reassert the importance of human rights in international law and its equal application to all nations.

Article by Talha A. Mirza, JD 2021 Background Earlier this month, the United States (US) signed into effect the new USMCA (United States—Mexico—Canada Agreement) free trade agreement. The USMCA, also known as “NAFTA (North American Free Trade Agreement) 2.0,” forges a new path in International Trade. The agreement allows the US greater access to Canada’s nineteen billion-dollar dairy market and promotes greater automotive production in the US domestic market. Nonetheless, the USMCA fails to address the tensions around American tariffs on Canadian steel and aluminum exports, an issue that has been hotly contested between President Trump and Prime Minister Trudeau. Don’t Milk It!: Summary of Changes and Impact on Specific North-American Trade Markets While the USMCA breaks new ground in several areas of North-American trade policy, it does not help Canada’s domestic dairy market, and increases costs in the automotive industry through wage alterations. First, the USMCA grants the United States access to three-and-a-half percent of Canada’s dairy market, a move that faces strong opposition from Canadian farmers who produce dairy and manage the international supply chain to the United States. In response, Canada has offered compensation to its farmers, but this has not remedied the dilution of Canada’s domestic dairy market. Now that the US can increase dairy exports to Canada, in addition to gaining more control over the international dairy supply chain, there will be a significant economic loss for domestic players in Canada’s dairy market. Secondly, the agreement’s provisions require higher proportions of car parts to be manufactured in Canada and America. In addition, the agreement established a wage floor of sixteen dollars per hour. Together, these provisions outsourced significant automotive production from Mexico to the United States and Canada. Ramifications on International Trade Arbitration While the USMCA brings about new policy, it will carry over one of the most hotly contested NAFTA provisions. NAFTA’s Chapter 19 dispute resolution mechanism, a significant point of contention during previous NAFTA negotiations, grants all agreement signees the right to challenge other nations’ anti-dumping and countervailing duty decisions in front of an objective, multilateral, expert panel. Canada has used the Chapter 19 dispute resolution mechanism against the US, primarily in anti-dumping cases that pertain to imported Canadian softwood lumber. There exists a strained back-and-forth between trade representatives from the United States and Canada, as both countries attempt to avoid arbitration in the Chapter 19 forums. However, the WTO (World Trade Organization) provides a potential solution. The WTO’s 164 members are granted the right to challenge one another over “unwarranted trade restrictions, illegal subsidies, and other unfair practices.” Nevertheless, the WTO may pose even more problems, as it does not have the jurisprudential effect of a domestic court, which the NAFTA-borne Chapter 19 judicial forums possesses. The consequences of potentially moving the anti-dumping and import dispute cases under the purview of the WTO could yield unenforced judicial decisions.

Article by Shantanu Lakhotia Introduction: Racism is not a newly coined termed, it has existed for centuries, as stated by Patrick Thornberry in Confronting Racial discrimination a CERD Perspective, he clearly outlines that racism can be discovered in  any form of activities ranging from  simple debates for example the one currently taking place in the United Kingdom about Brexit which has suddenly sparked racist hate or in the United States where the now elected head of the state President Donald Trump has equated all  Mexicans with criminals or even for that matter it permeates simple everyday aspect of life like education, housing etc.  In light of all these global issues the term has remained the same but the concept as to what constitutes racial discrimination has evolved and hence there arose a need to bring forth an international body to ensure that all races across the globe are treated equally in all ‘ratified’ nation states. However, like most of the enacted laws or signed treaties, there exists a lack of proper implementation and a substantive amount of ‘squeaks’ in the international enforcement mechanism. The aim of this paper is to try to bring into light the fact that the individual complaint mechanism as prescribed in article 14 of the Convention on the Elimination of Racial Discrimination been not been able to fulfill the goal for which it was bought into existence. The International Convention on the Elimination of Racial Discrimination(CERD): One of the profound principles of Human Right was of freedom and equality of all, however for a colony ruling state, the word ‘Human’ was only associated and restricted to the citizens of their country and not to the indigenous population of the states annexed by them. This is the reason for the drafting of ICERD in 1963 and its eventual adoption in 1965 by the general assembly. It was the first ever international human right treaty to have the power to supervise as well as to provide the power to the Committee on Racial Discrimination listen to individual grievances (dependent on the fact that the state recognizes the competence of the international court).  Thus, given the time period i.e. of decolonization, the foremost goal of ICERD was to make ‘party’ nation state realize that discrimination cannot be done either at home nor in occupied territories. As pointed out by Patrick Thornberry, racism was considered to be “hydra headed and resilient phenomena capable of adaption and survival” this put a duty on the Committee, to constantly recognize and evolve the definition of racial discrimination based on every new type of violation that happened. Recognizing mechanism: For any treaty to be successful or for that matter for any problem to be solved, the first step is to recognize and realize the fact that there exists a problem. There are two main ways that CERD can recognize human violations are taking place in a country, the first is by the reports that are submitted by the government in pursuance of Article 9 which talks about the submission of periodic report biannually and second is by individuals approaching the courts established by this treaty and stating their violation. However, both of these mechanisms suffer with some form of deficiency. Reporting mechanism: The foremost way that a problem is bought into light in front of the CERD is by the reports framed by the government of a state and hence it is important to state that it is the federal and local government which makes the success of this treaty possible. However, their exists an underlying hierarchy where it is expected by the committee that it is more of the federal governments responsibilities to ensure that all the provisions of the treaty are being complied with in their country. If we consider a report provided by the Columbia Law School Human Rights Institute & International Association of International Human Rights Agencies about the proper implementation of the treaty in USA, it clearly states that lack of education and knowledge at the local level makes it harder for the treaty to be carried out properly in the country “What does currently exist at the federal level is an ad hoc approach to human rights reporting and implementation without meaningful avenues for state and local government participation. Thus, U.S. compliance with CERD will continue to fall short.”  It is important to understand that CERD does not possess any form of enforcement mechanism and even though they can identify the shortcoming in the implementation of the treaty, they can only recommend certain actions to be taken by the respective government which is eventually depended on the whims and fancy of the government to consider and apply. Recently, a Nigerian National was assaulted in a mall in India which was easily brushed aside by the government of India without much consequence, thus showing the careless attitude of the government to even report such crime. Adjudicating mechanism: CERD entered into force on 4th January 1969, however the complaint mechanism as enshrined in article 14 could only come into effect in 1982 i.e. 13 years later which shows the imperceptibly of nations states to even accept the competence of an international court to look into their domestic matters. It is important to note that even though it can be seen that since 1969, 177 countries have become a party to this treaty, as of 2010 only 58 states, which is less that even half the party states have actually subscribed to send their domestic cases of violation to these international courts. As stated by Professor Theo Van Boven, former member of CERD, “the pace of acceptance of the article 14 procedure is slow and disappointing” For the purpose of this paper it is important to understand the importance of an individual complaint mechanism. Harrington is of the opinion that the main purpose of having an international court is to determine the biases a judge ‘might’ have towards the domestic government. In addition to this it ensures that there is a higher authority (in theory) that can grant a person remedies when their right is being violated by the state. Moreover, it has also been stated by Harrington specifically that “the international community could not be aware of those violations if that individual complaint mechanism did not espouse personal communication instead of state- to- state approach communication.”  Based on the above statistics it can be concluded that 119 state parties to the treaty are free to decide what amounts to racial discrimination.  Another fact to be kept in mind is that In the rare case where it has been seen that there is a violation by the state, those 58 countries which have affirmed the competence of the international court to try the matter of violation, are nowhere bound to follow the recommendations or the judgments given by the international court and neither does the committee does not have the power to make it enforceable in the particular states territory or court for that matter, even after the CERD court has made a public notice of the same, as stated by Hamamoto, “the Committee decisions can enforced by the State Parties as long as the States Parties intend to comply with the Committee decisions, as some states are more reluctant to enforce the decisions of treaty committees within the domestic area.”  This can be seen from the last paragraph of the judgment passed in the CERD case Mahali Dawas & Yousef Shava v Denmark where it is stated that, “it is recommended…..” Hence, it cannot be considered to be anything more to than a suggestion and as pointed out by Proff. Dr. Marc BOSSUYT, member of CERD he has said that, “The Governments concerned are generally forthcoming in disseminating the opinion of the Committee. In some cases, they also took measures to amend the applicable legal provisions. In a few cases, they accepted to award compensation to the authors for the expenses they had made for legal assistance in submitting the communications. Up to now, no State party accepted to award any compensation for pecuniary or non-pecuniary damage.” The only possible benefit could be that individual complaint mechanisms brings forth a global problem i.e. the world gets to know about the possible violations going on in a particular country. However, based on the country’s power the political pressure becomes inversely proportional i.e. more the power less the international pressure for example in comparison to the United States if Congo commits a similar violation, Congo will face much more scrutiny than United States. This brings forth the point that a balance between justice and injustice cannot be maintained by a non-enforceable international court and hence, there is a need for a body to hold a state accountable for its wrong instead of just being publicly shamed for it. Conclusion: Based on the above discussion an important quote Louis Henkin can apply to this situation i.e. “almost all nationals observe almost all principles of international law and almost all of their obligations almost all of the time”. The reason for this quote to be appropriate in this case is for the simple fact that firstly, 119 states out 177 party states are free to decide what is racial discrimination, thus are free to enforce accordingly in their local courts and secondly, none of the states are bound by the decision of the committee. The possibly wickedest part of the treaty is the non-enforceable power of the committee which at the domestic level is nothing more than a recommendation on a piece of paper which actually holds no power. It gives a false sense of hope to the effected people that their problem might be solved by their government and hence, it is important to bring forth a Committee or give them the power to enforce its decision and make it mandatory for party states to be bound by Article 14 of the convention in order for justice to be delivered. About the Author: Shantanu Lakhotia is currently in his final year of a 5-year integrated B.A. LL. B course at Jindal Global Law School, India. He has previously interned at Shardul Amarchand Mangaldas, Delhi; Khaitan and Co., Mumbai and with advocates practicing at the Delhi High Court and Supreme Court of India. He is interested in pursuing a career in the field of Arbitration.

Article by Angela Moon China’s crackdown on Uighur Muslims in Xinjiang province is drawing international concern. In addition to constant police surveillance, the Chinese government has detained Uighurs into re-education camps where they are forced to listen to lectures, sing hymns praising the Chinese Communist party, and write self-criticism essays. More recently, the government has even separated Uighur children from their parents and placed them in orphanages, a move to systematically distance young Muslims from their culture. The goal is to remove any devotion to Islam, and maintain an iron grip in Xinjiang where more than half the population of 24 million belongs to Muslim ethnic minority groups. Most are Uighurs, who speak a Turkic-based language, and refer to their homeland as East Turkestan. China’s targeting of Uighur Muslims violates international human rights laws and norms, particularly concerning discrimination on the basis of race, culture and religion. The United Nations Committee on the Elimination of Racial Discrimination condemned China’s actions, having reviewed reports that point to Muslims “being treated as enemies of the state solely on the basis of their ethno-religious identity.” China has categorically denied reports of abuses in Xinjiang; according to reports uncovered by former detainees, however, one can be thrown into a camp for “praying regularly, reading the Quran, going abroad or even speaking to someone overseas.” All of these are committed with intense camera surveillance, without any right to privacy, and arrests are made without due process. In addition, overwhelming evidence, including “official directives, studies, news reports, and construction plans” has surfaced online, along with eyewitness accounts by former detainees who fled to Turkey and Kazakhstan. China’s actions have deeply troubling implications for international human rights. If unchecked, China’s ruthless policies against Uighurs may lead to complete ethnic cleansing of a minority group, as it proceeds under the guise of national security against terrorism and Chinese national unification. We should not accept this outcome. The U.N and other human rights bodies, and other nation states must continue to hold China accountable, or risk having the legitimacy of international human rights law dismantled in the process. The U.N should press for thorough investigations in China, and aggressively call on China to release all detainees, while the U.S. and other nation states should impose sanctions for human rights violations and stop selling items China may need. The choice is ours to act and interfere.

Article by: Francesco Arreaga Two principal concepts of international relations are sovereignty and anarchy. In international relations theory, anarchy is defined as the lack of a world government. In other words, our international system does not have a global sovereign that manages the world. Sovereignty can be traced back to the Peace of Westphalia, which ended the Thirty Years’ War in 1648. The basic meaning of sovereignty is that all nations have a right to govern themselves without the interference of external forces. The Charter of the United Nations (UN) embraces the idea of sovereignty when it states that the “Organization is based on the principle of the sovereign equality of all its Members.” Sovereignty and anarchy are inextricably linked because if we accept that every nation is sovereign, then we cannot accept the establishment of a global sovereign that has the power to control what countries do. The law is an integral part of our daily lives in the United States because it serves to structure our society. We choose not to live in a state of nature, but to instead abide by our Constitution, the policies implemented by our representatives, and the rulings made by our judiciary. Enforcement of International Law At the international level, there are various institutions that purport to provide some structure to our world. Such institutions include the UN, International Court of Justice, International Criminal Court, Permanent Court of Arbitration, and World Trade Organization. In order for these bodies to be effective, nations around the world must view them as legitimate institutions. Any law, regulation, treaty, or decision made by an adjudicatory body, is of no use if there is no accompanying enforcement mechanism. The enforcement of international law is an issue that exists in an anarchic international system that prioritizes the sovereignty of nations. In 2016, the Permanent Court of Arbitration issued a ruling in the South China Sea Arbitration. The international tribunal held that China’s historic claim to the South China Sea, through its nine-dash-line, had no legal basis. Although China’s expansive claims in the South China Sea were found to be a violation of international law, China did not halt its expansionist behavior in the region. Rather, China continued militarizing the South China Sea through the creation of man-made islands. A recent flight over the South China Sea by an American maritime patrol aircraft, captured how China’s artificial islands contained “radar domes, shelters for surface-to-air missiles and a runway long enough for fighter jets.” As China’s President Xi Jinping gains greater political power through the abolition of presidential term limits from China’s constitution, he has signaled that he will not “lose even one inch of the territory” in the South China Sea. Legitimate institutions? China’s disregard for the ruling of the Permanent Court of Arbitration illustrates how international institutions, and international law in general, have not been accepted as legitimate mechanisms for resolving disputes in our world. International tribunals have not supplanted nation states as the arbiters of world affairs. For example, nation states have been attempting to deter China’s expansionism in the South China Sea through various military exercises. This week, France and Australia announced that they will conduct military exercises in the South China Sea because “the South China Sea is international water.” Approximately two weeks ago, Japan used a submarine for the first time during a military drill in the South China Sea to signal its intent to “keep in check Beijing’s muscle-flexing.” On August 31, 2018, the United States conducted joint military exercises with Japan in the South China Sea to further interoperability. Finally, American military aircraft continually fly over the South China Sea as part of “U.S. Indo-Pacific Command’s Continuous Bomber Presence (CBP) operations.” The example of China disregarding the ruling of an international tribunal is just one portrayal of how international law is subservient to the interests of sovereign nations. Public opinion in the United States about international institutions such as the UN has not been favorable. In 2018, a Gallup poll found that six in ten Americans believe that the UN “is doing a poor job.” Earlier this month, National Security Advisor John Bolton called the International Criminal Court an “illegitimate court” and threatened to ban judges from the ICC and sanction their funds in the American financial system. In light of these circumstances, is it possible for international tribunals and institutions to ever have the legitimacy and trust that they require so that their decisions are respected? If so, would that be the end of anarchy and sovereignty in our international system? Would this be beneficial or detrimental to our world? These are all questions that we need to ask ourselves as we think about what the most effective methods are to resolve conflicts peacefully amongst nations.

Articled by Fabian Unser-Nad On 6 September 2018 the Pre-Trial Chamber I (Chamber) of the International Criminal Court (the Court) ruled that it has jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. This decision is a significant step towards justice for the Rohingya but has also major implications for another ongoing conflict – Syria. The Syrian Civil War and the failure of the international community to find a solution is one of the graves tragedies in the history of humankind. Although the UN Human Rights Council in 2011, established the Independent International Commission of Inquiry on the Syrian Arab Republic (IIIM) to continue to monitor and report on violations of international law committed by parties to the conflict, it is barred from entering the territory and does not have a legal mechanism to hold the authors of the atrocities committed accountable. Further an referral by the UN Security Council to the Court is very unlikely. Now the Court’s decision confirming jurisdiction also opens the path for legal accountability in Syria. On 9th April 2018 the Office of the Prosecutor (OTP) submitted a request pursuant to article 19(3) of the Rome Statute (Statute) on a ruling of the question whether the court may exercise jurisdiction pursuant to article 12(2)(a) on the alleged deportation of the Rohingya from Myanmar, not a State Party to the Statute, to Bangladesh, a State Party. The OTP indicated that “since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh.” The Chamber first examined the Court’s jurisdiction in relation to deportation as a crime against humanity pursuant to article 7(1)(d). In doing so, it accepted the OTP’s interpretation that the provision sets forth two separate crimes, namely deportation and forcible transfer. This distinction is important because deportation requires the crossing of an international border, while forcible transfer does not, and the provision links the conduct to the destination. The Chamber also noted that the same rationale can be apply to other crimes under its jurisdiction if at least one element or part of the another crime was committed on the State Party’s territory. Turning to question if the Court may exercise its jurisdiction pursuant to 12(2)(a) the Chamber considered that the precondition to exercise jurisdiction, as a minimum are fulfilled if “at least one legal element of a crime within the jurisdiction of the Court or part of such crime is committed on the territory of a State Party.” The Chamber observed that the public international law permits the exercise of criminal jurisdiction by a State to the effect that it requires the commission of at least one legal element of the crime in the territory of that State. Further the Chamber highlighted that Myanmar’s penal code has a provision that held perpetrators of crimes committed beyond its borders. And additionally emphasized the inherently trans-boundary nature of the crime of deportation, namely that an element of the crime of deportation is “forced displacement across international borders” and means that the conduct related to this crime necessarily takes place on the territories of at least two states. In conclusion the Chamber found that article 12(2)(a) allows for the exercise of the Court’s jurisdiction. Turning to the Situation in Syria. Syria is like Myanmar not a State Party to the Statute. The Syrian Civil War is ongoing since 2011 and has already taken more than 400,000 lives, with around 5 million seeking refuge abroad and over 6 million internally displaced people. Various Syrian rebel groups or the Syrian governments are responsible for the deportations of the Syrian civil population and many of the population are fleeing as far as Europe. However, for the Court to exercise its jurisdiction the fleeing must be “direct” to another State. Accordingly, to exercise its jurisdiction only Syrian refugees who flee directly to the territory of a State Party could be taken into account. One of the neighbor to which many refugees flee is the Hashemite Kingdom of Jordan which is a State Party to the Statute. There are more than more than 655,000 registered Syrians as refugees in Jordan. This number is somewhat similar to the number of Rohingya people mentioned in the OTP’s request. At this moment a form of legal accountability is what the Syrian survivors need, and the recent chamber decision could be a step on that path.

Article by Pulkit Dhawan Abuse of Right in international law denotes a situation where a state exercises its right in a manner which hampers the rights of other states thus, causing injury to other states. The concept of Abuse of Rights may look similar to the situation where state acts ultra vires, but there should be no confusion between them because, while acting ultra vires the state had no right to perform the act, while in case of abuse of rights the state acts within its power. Abuse of Right has been a part of national legal system of various countries, finding its existence in civil codes of Switzerland, Italy, Germany, Austria, Spain etc. thus, the manifest abuse of a right is not protected by the law in these countries. The concept of Abuse of Right is not highly acknowledged in common law countries, though there exist certain alternatives in the common law like concepts of Equity and abuse of conduct which prohibit the abuse of rights. My questions is whether the Abuse of Right Doctrine is applicable and important in international law? According to Dr. A. C. Kiss, abuse of rights  in international law can mean three things, “First, use of a State power which interferes with another State’s use of a power which it possesses; secondly, use of a power for a reason which was not one for which the power was conferred; thirdly, use of a power in an unjustifiable or arbitrary manner.” Applicability in International Law This prohibition, has existed in domestic legal systems in civil law and socialist countries as well as common law countries where court look at the motive of the actor where the legal principle is same as that of abuse of rights. This have led many states, arbiters, and authors to consider abuse of rights to be part of international law, either as a part of general principle of law or as part of customary international law. Several writers have considered this prohibition to  be a general principle and relevant to Art. 38(1) of Permanent Court of International Justice which lists it in sources of law and since it has been recognized in a number of countries it can be considered to be a general principle of law. United Nations International Law Commission (ILC), gave a detailed reference to abuse of right as it included articles on International Regulation of Fisheries “The Commission, in adopting the articles, was influenced by the view that the prohibition of abuse of rights is supported by judicial and other authority and is germane to the situation covered by the articles. A State which arbitrarily and without good reason, in rigid reliance upon the principle of the freedom of the seas, declines to play its part in measures reasonably necessary for the preservation of valuable, or often essential, resources from waste and exploitation, abuses a right conferred upon it by international law. The prohibition of abuse of rights, in so far as it constitutes a general principle of law recognized by civilized States, provides to a considerable extent a satisfactory legal basis for the general rule as formulated in Article 3.” Application of the abuse of rights doctrine can be seen in multiple cases of state litigation as well as in arbitrations. In the Fisheries Jurisdiction Cases it was argued by United Kingdom that “the states demarcating their territorial seas must do so in a way that does not constitute an abuse of rights”, similarly in Barcelona Traction Case, Belgium argued that, “Spain had frustrated the implementation of an agreement and “made improper use of an international enquiry.” In the Case of the Free Zones of Upper Savoy and the District of Gex, PCIJ stated that state attempting to avoid a contractual obligation by performing acts which have similar result as that of prohibited acts, an abuse of rights can be inferred. In Shrimp-Turtle Case, the Appellate Body of the World Trade Organization (WTO) accepted the argument of abuse of rights while applying the articles of General Agreement on Tariffs and Trade (GATT) as the United States was justified to use its exception of Article XX(g) in an effort to regulate fishing practice, but restrictions cannot be imposed on the basis of products but only on process followed. To prohibit this abuse, specific provision relating to abuse of rights have become part of various treaties, including ‘United Nations Convention on the Law of the Sea’ which states in its Article 300, “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Need for Prohibition of Abuse of Right When a right is exercised by a state to fulfill an objective different than what was intended to be achieved by that right and such a use of right results in injury to another state, it is detournement de pouvoir and a valid case of abuse of right. Nations Administrative Tribunal, of the Administrative Tribunal for the International Labor Organization have dealt with a number of cases where the prejudice has been suffered by the plaintiffs resulting from detournement de pouvoir. In environmental cases, the issue generally revolves around right of exploitation of natural resources and its effect on other neighboring states. Trail Smelter Arbitration dealt with such an issue where, a Canadian smelter situated on the US border was causing fumes and air pollution affecting the US state of Washington. The ruling in this case mainly emphasized on the duty to negotiate the use resources and effect of industrial production. If the utilizing State uses its resources in a way that is suited to deprive the neighboring State of its own right, an abuse of right by the utilizing State may occur. However, an abuse of right would require some element of positive bad faith, e.g. when the damage caused by the utilizing State is greater than its own gain Problem of Proof One of the important problem to deal while tackling the issue of Abuse of right is that of showcasing evidence of bad faith. For an action to be invalid abuse needs to be integral part of the action and the reason behind the action needs to be bad. Court while adjudicating such a case may be required to infer abuse on the basis of surrounding facts as the court in in Electricity company of Sofia and Bulgaria did. In this case the issue was, “whether denounced convention for peaceful settlement of disputes could be invoked to bring the case before the Permanent Court.” It was contended that, “Bulgaria had abused its rights in denouncing the treaty at the moment it did.” Judge Anzilotti’s stated in his dissenting opinion that, “The situation might be somewhat different if the Bulgarian Government… had chosen the particular moment at which it had been informed of the Belgian Government’s intention to apply to the Court. But that is not the case.” There exists an inherent reluctance among tribunals to find a state to be unreasonable and liable for bad faith. This is because he object needs to be to determined, whether the facts indicate a defective reason without attempting to find that the State had that reason actually in mind. It has been stressed in many rulings of PCIJ that the burden of proving the abuse of right is on the state alleging the abuse, and hence the accusing party would be required to bring in evidence that the right has been utilized with disregard to the objective behind that right. Criticism The Concept has been criticized mainly due to difficulty in its application in international law due to subjective nature of the principle. The need for this principle seems to be negated due to already existing principle of good faith and due to its similarity in application. But one of the most important reason for the criticism and the failure of its application in international law is its vague definition and lack of state practice. Critics might be right in their analysis that the principle is too broad and has to subjective an application, but the concept of a prohibition against the abuse of right is aimed to deal with the broader issue of abuse and cannot be constrained by definitions. However inclusion of provisions in treaties, prohibiting abuse of rights embodied in the treaty could fulfill this drawback highlighted by the critics by providing clarity in its application at least for conflicts arising in relation to that treaty. About Author: Pulkit Dhawan is a final year law student at Jindal Global Law School, India. He has previously interned at the Commonwealth of Australia’s Attorney General Department, Canberra; Samvad Partners, Mumbai and with the advocates practicing at Bombay High Court and Supreme Court of India. He is interested in International Law, and is a Young Arbitration Member at ICCA (The Hague,Netherlands).

Article by Parimal Kashyap A Brief History of the Legal Framework on Protection of Environment in Armed Conflict Protection of the environment during armed conflicts is relatively new to international law. As owing to the anthropocentric nature of international humanitarian law, the environment has always been a sidelined issue. Protection of the environment, therefore, does not find any direct mention in the foundational treaties of the law. In fact, much of the groundwork for protection of environment during armed conflict began only in the aftermath of Vietnam War and armed conflicts spurting out during decolonization. Use of Agent Orange by the US in Vietnam as part of its military strategy meant that environment could well be intentionally sabotaged to gain military benefits. Concerned by these worrisome developments, the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (hereinafter ‘ENMOD’) was adopted. ENMOD obligated state parties to “engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party”. Later, when Additional Protocol I to the Geneva Conventions was adopted, two similar clauses for protection of environment were included First signs of inadequacy of newly formed treaty law on this issue were seen in the early 90s as the first Gulf War saw environment being made an object of attack. Massive destruction of the oil wells in Kuwait and its adverse impact on the environment of Middle East prompted the international community to demand an overhaul of the legal regime on protection of environment in armed conflict. The General Assembly encountered constant demand for a comprehensive convention on this issue. However, owing to the resistance posed by the great military powers, the matter was quietly buried by the General Assembly. Insertion of a provision for the environment under the Rome Statute has been perhaps the only significant progress made in improving the normative setup on protection of environment during armed conflicts. However, to date no person has ever been indicted for harm caused to environment for actions during armed conflict. Given the current setup, it is highly unlikely that the court will be able to prosecute someone for war crime of intentionally destroying the environment during armed conflict and the reasons shall be cleared from the following discussion. Deficiencies in the Current Treaty Law As discussed earlier, Additional Protocol I and ENMOD are the sole multilateral treaties governing the conduct of parties in armed conflict in context of environment. However, there is a big inconsistency between the provisions of both the treaties. Article 35(3) of Additional Protocol I reads as: “it is prohibited to employ methods and means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”. The condition or the threshold in both the treaties differs as Additional Protocol I employs a ‘conjunctive’ test as opposed to ENMOD’s ‘disjunctive’ test. Further, the interpretation of the terms also differs in both the treaties. For example, duration element in ENMOD was to be interpreted to extend to several months while negotiators during the adoption of Additional Protocol I interpreted the element to extend to years. This difference resonates in several inconsistent interpretations. The legal setup is insufficient for many reasons: Firstly, after the adoption of Additional Protocol I, ENMOD is, to a large extent, deserted. This is reflected in ratification rates of both the treaties and much larger recognition of the Additional Protocol I by international community in general. It is here where the problem lies as the terms ‘widespread’, ‘long-term’ and ‘severe’ that lay at the foundation of the provisions are largely imprecise. Hence, if they are interpreted along the lines of drafting history, it will be almost impossible to meet the threshold by means of conventional warfare. Hence, no matter how disastrous the conflicts in Syria and Iraq have been for environment, we may never see successful application of treaty law. Secondly, even if a situation does manage to meet the threshold, the scope of the prohibition remains uncertain which makes it challenging to enforce. The Customary Law Perspective Unlike the treaty law regime, there has been an impressive development in opinion juris. Considering the current state of treaty law, the development is relieving for the legal regime on the issue could benefit from the general principles of international humanitarian law. The application of customary law could be especially useful in context of non-international armed conflicts. International Environment Law in Context of Armed Conflicts The issue has been largely viewed through the lens of law of armed conflicts. This approach seems perhaps too shallow, especially when it is settled that international law applicable during armed conflicts goes beyond the normative setup of humanitarian law. In the light of the inadequacies in humanitarian law setup, International Environmental Law could be a useful way out. Several notable multilateral environmental treaties call for protection of environment during armed conflict. However, their application in the context of armed conflicts is complicated for several reasons. Firstly, international environmental law is itself in an evolutionary phase. Secondly, its application in the context of international humanitarian law brings several concerns in realm of status of lex specialisnorms in international law. These concerns are compounded by apprehensions regarding fragmentation of international law. Hence, if we are to employ provisions of international environment law in context of armed conflicts, more deliberation is required. ILC’s Programme To strengthen the normative setup, ILC introduced the issue to its program of the work in 2014. ILC aimed to advance proposals on legal protections against the destruction of the environment during armed conflicts. The issue has managed to be one of the topics that the commission will deal with in its 70th session. Between 2014 and 2018, ILC has published three reports on the issue and it seems clear that study goes beyond the law of armed conflict. The end product of the study will be compilation of draft principles on protection of the environment in relation to armed conflict. As the title suggests, the commission has taken all the phases, i.e. before, during and after the conflict, into account. While such a compressive approach is praiseworthy, drafting principles for pre-conflict as well as post-conflict phases could involve several complexities. Some of those complexities are well reflected in the current the current drafts as several principles are vague. Conclusion Environment continues to be a silent victim amidst contemporary armed conflicts. In an era where around twenty percent of the environmental degradation occurs as a direct result of military activities, legal setup must be well-equipped to deter direct or indirect destruction of environment resulting from such armed conflicts. As discussed above, treaty law is imprecise and leaves much of severe environmental harm outside the its scope. The current ILC program could be a milestone in the strengthening the international regime on the issue. About the Author: Parimal Kashyap is a 3rd-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. He is an editor of RMLNLU Law Review. He has a keen interest in international law.

Article by Rohan Jain Complementarity principle conceptualises International Criminal Court not as a court of review, but as a supplementary court imparting criminal justice, where domestic courts could not. This is manifested in the admissibility criteria established for the Court under Art.17 and Art.20 of the Rome Statute. Once the domestic courts of competent jurisdiction exercise their jurisdiction over a case, the Court no longer can admit the case. This is the principle of ne bis in idem. Conversely, where no trial has begun in domestic courts, Art.17 allows the Court to admit the case only in situations where State having jurisdiction over the crimes depicts unwillingness or an inability to prosecute the case. These two provisions on admissibility exemplify the drafters’ intent to accord primacy to domestic courts and create an international court with a role of supplementing domestic criminal system. The principle of ne bis in idem hinges on the concept of finality of judgment. (Otto Triffterer, Rome Statute of the International Criminal Court: A Commentary, ¶901, 2016) Any judgment by domestic courts enjoys a presumption of finality under the Statute and has binding effect on the Court. However, the Statute considers the finality of such judgments to be vitiated in two situations, first where the trial was marked with a purpose of shielding the accused from international responsibility, and second where the proceedings were characterized by a lack of independence and impartiality. The Statute, however, does very little to explain the term ‘shielding’ or even the factors indicating an intent to shield. In this context, the IACHR and ECHR jurisprudence may provide a useful guidance for the Court. Any fact reflecting a perfunctory and superficial functioning of the State organs in prosecution have been held by both the courts as significant indicators of a State’s intent to shield an accused.  (Timurtas ECtHR, Velásquez-Rodríguez IACHR). More specifically in the case of Gangaram-Panday, the IACHR noted the errors and procedural flaws in ascertaining and weighing evidence presented before the domestic courts as possible reflections of a larger picture of State intending to evade from its judicial responsibilities. This raises a question as to whether an erroneous interpretation of law by domestic courts could indicate an intent to shield and could be viewed as an unwritten exception to the ne bis in idem principle. Drafting History and the Error of Law Numerous other exceptions to the ne bis in idem than the existing exceptions were proposed during the different phases of the Statute’s drafting. The 1994 ILC Draft Statute proposed an ‘ordinary crime’ exception to this principle, while the report of the 1990 ILC Draft Statute looked to import ‘crimes against State’ as an added exception to the list of exceptions appearing in the present provision. In addition to this, in 1990 Special Rapporteur Doudou Thiam proposed ‘lack of proper appraisal of law or fact’ as an exception to ne bis in idem principle under the draft. The proposal survived till the 42nd Session of the Commission. However, the debate around this exception died till the 1994 Draft Statute. Thus, while the Statute would not be accommodating to an independent exception of error of law, the drafting history does not answer the status of error of law as a relevant consideration in interpreting the term ‘shielding’. Scope of Ne Bis in Idem under the Statute Any elucidation of the exceptions to ne bis in idem turns upon understanding the nature and form of the principle as codified under the Statute. However, one must avoid loosely using this term in context of international trials. Ne bis in idem differs significantly when applied domestically and when applied in transnational and international contexts. (See, Cassese, The Rome Statute of the International Criminal Court: A Commentary, ¶707, 2009) ICC’s application of this principle differs from all these conceptions of ne bis in idem at different levels and adopts a sui generis notion of the principle. Perhaps, therefore, only a comparative analysis of this principle in different contexts could elucidate upon its peculiar scope and nature under the Statute. Ne bis in idem forms a generally accepted principle across most domestic systems. (See, O’Keefe, International Criminal Law, ¶501, 2015) A decision of one domestic court attains finality qua other domestic court and binds them. However, domestic courts are typically placed in a position of hierarchy with one court possessing the authority to judicially review the decisions of other. The broad grounds of judicial review in domestic law mean that finality of decisions is not understood in its strictest sense and often broad exceptions like error of law fit within domestic systems. However, where a case already tried in one jurisdiction falls for a foreign court’s consideration, ne bis in idem is far from being applied as a general principle. (See, Triffterer, ¶904; De Lacuesta, Schomburg) The concerns of sovereign rights, by both the States involved, underline such transnational trials. (See, El Zeidy, The International Criminal Court and Complementarity, 861, 2011) Attaching finality to decisions of foreign court inevitably requires a State to forgo its jurisdiction to adjudicate crimes. The text of UN Model Extradition Treaty is one of the tangible expressions of these sovereign concerns. Art. 3(d) of the Model Treaty mandates refusal of extradition request where the accused has been tried by courts in requested State. This provision reflects the position in bilateral and multilateral extradition treaties including the European Convention on Extradition; India’s treaty with Australia, US, UK; US’s treaty with UK, France, Germany; .This depicts a strong sense of resistance among states against dilution of their adjudicative jurisdiction and sovereignty manifested by disallowing an exercise of concurrent jurisdiction by courts of another state. Even the lack of a nuanced conception of this principle at transnational level is attributable to States’ sovereignty concerns. Often scope of the principle alters from one domestic jurisdiction to another. (Cassese, ¶¶710, 713) While certain legal systems consider a case as final only when decided on merits and not dismissed on formal or jurisdictional grounds, others consider a case once dismissed as final. (See, Cassese, ¶¶710, 713; Alison Bisset). It seems to be primarily states’ resistance to alter its own domestic legal principles that translates these domestic divergences into an international impasse in building a nuanced ne bis in idem. Therefore, sovereign concerns of States have led to establishing only a primitive form of ne bis in idem at transnational level. This ne bis in idem premises itself on a narrow concept on which all States share an overlapping consensus i.e. the concern for fair trial rights of the accused. Manifested in Schengen Convention, at least at European level, lies great state consensus on a transnational ne bis in idem which defines the principle as one that protects person finally judged from facing a re-trial for same offence with the exceptions of offences against state security or interests. At international level, the development of this principle has further been a step back. Internationally, ne bis in idem has rested on the nature of the court’s functioning with no uniform scope and application. It found its first mention in ICTR and ICTY statutes. Peculiar to these tribunals, they took primacy over domestic courts in imparting international criminal justice. (See, Art. 8, ICTR Statute; and Art. 9, ICTY Statute) Inevitably, the statutes adopted an approach where the tribunals’ decisions would bind the domestic courts, but decisions of domestic courts very often would not have such effect. Similarly, under the Rome Statute the scope of ne bis in idem is defined by the nature of the Court i.e. the complementary nature of the Court. This complementary nature of the Court distinguishes the ne bis in idem at transnational level from the ICC notion of the principle. The notion of ne bis in idem is far stricter under the Statute when compared to its transnational notion. This is manifested in the exceptions to the principle at both the levels. While for reasons like offences against the State or offences committed by public officials, ne bis in idem can be bypassed at transnational level, such broad exceptions are neither available for the Court nor compatible with its complementary nature. Under the Statute, thus, ne bis in idem appears with narrow exceptions and in a rigid form perhaps only to impel the drafter’s intention to balance the two competing values of the Court i.e. its status as a complementary court and its objective of ending impunity by exercising its jurisdiction. Conclusion The principle of ne bis in idem, thus, differs in its scale of rigidity as one moves from its domestic notion to transnational notion to international notion. Any question of interpretation or expansion of the principle at any level must, therefore, seem compatible with the nature of the principle. Under the Rome Statute, any implication which the term ‘shielding’ holds is, thus, limited by the need to maintain a balance between these competing values reflected by the ne bis in idem. Error of law is, however, a term of wide import which when used unqualified transgresses beyond the limits of the complementary nature of the Court. Potentially, every erroneous ruling at the domestic level would invite the application of shielding exception under the Statute. Not only would that strike a death knell for the ICC’s complementary jurisdiction, but also, politically, the Court would lose support of State Parties and potential future signatories. Thus, the Statute’s framework would only support a notion of error of law with a qualifying standard or threshold. A grave error or an error apparent on the face of the record, or a judgment delivered per incuriam could, perhaps, be instances of a qualified error of law that could be used as indicator of ‘shielding’ under the Statute.