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By Anil Yilmaz The last two years saw the Trump Administration bringing about several impactful reforms in a multitude of socio-economic areas. Majority of these reforms entail huge controversies and the ones focusing on multilateral trade agreements are of no exception. Obscurity surrounding the Transatlantic Trade Partnership and shelving of the Transpacific Partnership is already well-known. Currently the administration is making a blatant move to scrap the investor-state arbitration under NAFTA and obstruct with the WTO dispute resolution mechanism. Not so long ago President Trump defined NAFTA as “the worst trade deal maybe ever signed anywhere.” The US Trade Representative Lighthizer recently joined the conversation and laid out his skepticism of investor-state arbitration under NAFTA Chapter 11. Lighthizer essentially made two claims: Investor-state arbitration clauses work against US sovereignty and they ease the way for US corporations to migrate by eliminating the political risk abroad. However, as is often the case, the facts do not side with the Administration on this one. The US has never lost a case under NAFTA. Therefore, the impact of NAFTA upon US sovereignty is virtually zero. If anything, US companies are awarded handsome compensations by NAFTA tribunals and avoided otherwise harmful restrictions. Moreover, empirical studies fail to unequivocally find a direct correlation between the existence of free trade agreements and corporate decisions for making investments abroad. This means that regardless of the existence of any treaty, US corporations will likely continue operating abroad to maintain or increase their global market share. Scrapping ISDS clauses starting with NAFTA thus will only ensure one thing: exposing US corporations to political risk when operating abroad without a viable international legal remedy. Businesses, politicians, and lawyers familiar with the existing legal framework warn the Trump Administration not to undermine the investor-state arbitration. For instance, renowned US international law practitioner Judge Brower recently condemned what he called “politicization" of investor-state dispute settlement and claimed that a move away from the current regime would be “selling-out” investors. At the Annual Meeting of ASIL, Judge Brower strongly criticized Lighthizer’s school of thought with reference to centuries-old trade practices. In a similar vein, dozens of Republican Congressmen moved by business leaders sent an open letter to Trump Administration to avoid “harming” their industry and maintain existing legal policies in relation to free trade agreements.  On the other side of the aisle, opponents of the current investment regime gain recognition from the nascent populist movements in both Europe and the US.  Yet, such movements are based on real “fake news” Judge Brower claimed. Trump Administration’s skepticism is not confined to investor-state arbitration. Since the summer of 2017, a similar effort is underway in relation to WTO dispute resolution. The US Government has denied appointing new members to the Appellate Body which hinders the once highly acclaimed dispute resolution process.   WTO Director-General Azevedo said that the US actions compromise the “ability of the system to resolve disputes”. The hybrid system that the WTO dispute resolution process offers introduces diplomatic and legal elements, and have long been championed by practitioners as one of the most effective around the world.  Now the US government looks at the prospects of scrapping it down. Trump Administration’s not so secret intention to substantially increase tariffs on Chinese imports explains the motive. Yet the experts warn again for potential legal ramifications. The US has invoked national security grounds to avoid applicable WTO rules. This method might be replicated by other countries like China, which could potentially eradicate the system altogether. Based on the US interpretation, any country, including China, may redefine their national security interest as to include anything. Hence, avoiding the existing multilateral trade regime. With a weakened Appellate Body that is failing to provide legal oversight, we can easily return to days when these institutions did not exist. Trump Administration’s latest efforts significantly undermine the weight of international courts and tribunals and attempt to nationalize the adjudicatory process. Similar to its economic counterpart, judicial protectionism reverses the role of international trade and investment tribunals back to national courts and brings us to pre-cold war circumstances. Yet history is replete with examples of why this does not work. Additionally, there is no clarity on how this will support US interests. Protectionist measures may sound appealing at the outset, but it is their complex ramifications which makes them harmful. In this context, it is important to understand why the targeted judicial institutions were built in the first place. Prior to the existence of the current legal framework for trade and investment, capital-exporting states used to protect their economic interests abroad largely through diplomatic efforts. Due to ever-increasing burden of globalization, such diplomatic efforts may not be viable today. Reversing the processes could significantly undermine the probability of resolving economic disputes. Unresolved economic disputes, in turn, may raise diplomatic tensions and even lead to potential military conflicts. Therefore, it is important for Trump Administration to tread lightly when it comes to overhauling of this system. Without a thorough analysis made or alternatives created, walking away from NAFTA or undermining the WTO dispute resolution system could have significant adverse effects on US interests.

By Anil Yilmaz The last two years saw the Trump Administration bringing about several impactful reforms in a multitude of socio-economic areas. Majority of these reforms entail huge controversies and the ones focusing on multilateral trade agreements are of no exception. Obscurity surrounding the Transatlantic Trade Partnership and shelving of the Transpacific Partnership is already well-known. Currently the administration is making a blatant move to scrap the investor-state arbitration under NAFTA and obstruct with the WTO dispute resolution mechanism. Not so long ago President Trump defined NAFTA as “the worst trade deal maybe ever signed anywhere.” The US Trade Representative Lighthizer recently joined the conversation and laid out his skepticism of investor-state arbitration under NAFTA Chapter 11. Lighthizer essentially made two claims: Investor-state arbitration clauses work against US sovereignty and they ease the way for US corporations to migrate by eliminating the political risk abroad. However, as is often the case, the facts do not side with the Administration on this one. The US has never lost a case under NAFTA. Therefore, the impact of NAFTA upon US sovereignty is virtually zero. If anything, US companies are awarded handsome compensations by NAFTA tribunals and avoided otherwise harmful restrictions. Moreover, empirical studies fail to unequivocally find a direct correlation between the existence of free trade agreements and corporate decisions for making investments abroad. This means that regardless of the existence of any treaty, US corporations will likely continue operating abroad to maintain or increase their global market share. Scrapping ISDS clauses starting with NAFTA thus will only ensure one thing: exposing US corporations to political risk when operating abroad without a viable international legal remedy. Businesses, politicians, and lawyers familiar with the existing legal framework warn the Trump Administration not to undermine the investor-state arbitration. For instance, renowned US international law practitioner Judge Brower recently condemned what he called “politicization" of investor-state dispute settlement and claimed that a move away from the current regime would be “selling-out” investors. At the Annual Meeting of ASIL, Judge Brower strongly criticized Lighthizer’s school of thought with reference to centuries-old trade practices. In a similar vein, dozens of Republican Congressmen moved by business leaders sent an open letter to Trump Administration to avoid “harming” their industry and maintain existing legal policies in relation to free trade agreements.  On the other side of the aisle, opponents of the current investment regime gain recognition from the nascent populist movements in both Europe and the US.  Yet, such movements are based on real “fake news” Judge Brower claimed. Trump Administration’s skepticism is not confined to investor-state arbitration. Since the summer of 2017, a similar effort is underway in relation to WTO dispute resolution. The US Government has denied appointing new members to the Appellate Body which hinders the once highly acclaimed dispute resolution process.   WTO Director-General Azevedo said that the US actions compromise the “ability of the system to resolve disputes”. The hybrid system that the WTO dispute resolution process offers introduces diplomatic and legal elements, and have long been championed by practitioners as one of the most effective around the world.  Now the US government looks at the prospects of scrapping it down. Trump Administration’s not so secret intention to substantially increase tariffs on Chinese imports explains the motive. Yet the experts warn again for potential legal ramifications. The US has invoked national security grounds to avoid applicable WTO rules. This method might be replicated by other countries like China, which could potentially eradicate the system altogether. Based on the US interpretation, any country, including China, may redefine their national security interest as to include anything. Hence, avoiding the existing multilateral trade regime. With a weakened Appellate Body that is failing to provide legal oversight, we can easily return to days when these institutions did not exist. Trump Administration’s latest efforts significantly undermine the weight of international courts and tribunals and attempt to nationalize the adjudicatory process. Similar to its economic counterpart, judicial protectionism reverses the role of international trade and investment tribunals back to national courts and brings us to pre-cold war circumstances. Yet history is replete with examples of why this does not work. Additionally, there is no clarity on how this will support US interests. Protectionist measures may sound appealing at the outset, but it is their complex ramifications which makes them harmful. In this context, it is important to understand why the targeted judicial institutions were built in the first place. Prior to the existence of the current legal framework for trade and investment, capital-exporting states used to protect their economic interests abroad largely through diplomatic efforts. Due to ever-increasing burden of globalization, such diplomatic efforts may not be viable today. Reversing the processes could significantly undermine the probability of resolving economic disputes. Unresolved economic disputes, in turn, may raise diplomatic tensions and even lead to potential military conflicts. Therefore, it is important for Trump Administration to tread lightly when it comes to overhauling of this system. Without a thorough analysis made or alternatives created, walking away from NAFTA or undermining the WTO dispute resolution system could have significant adverse effects on US interests.

By Leyla Karimzadeh On April 25, 1945, delegates from fifty nations met in San Francisco, California. The United Nations Conference on International Organization (UNCIO) took place from April 25th to June 26th, when nations signed the United Nations Charter, the United Nations' foundational treaty. The name United Nations was first used by President Roosevelt in 1941 to describe the countries fighting against the Axis during World War II. The United Nations was created to maintain international peace and cooperation among nations in the aftermath of World War II. However, the United Nations was not the first international organization created to accomplish these goals. Under a very similar set of circumstances, its predecessor the League of Nations was created after World War I. In 1920 forty-eight countries joined the League. Unfortunately, the League of Nations ultimately failed and disappeared when World War II broke out. The United Nations has had a more successful story. In 2015 the United Nations celebrated its 70th anniversary. Its mission is to maintain international peace and security, protect human rights, deliver humanitarian aid, promote sustainable development, and uphold international law. The development of international law has been a major part of the United Nations’ work. Since its creation in 1945, the United Nations has had to evolve and adapt to many challenges. The second half of the twentieth century has seen the beginning and the end of the Cold war, the decolonization process, humanitarian and financial crises, and numerous wars. The international organization will have to face many challenges in this century too, starting with climate change and displaced populations, as well as internal crises.

By Dru Spiller In a year that has been fraught with tensions about immigration bans based on religion and national origin, a surprising human rights victory has emerged from the Eastern District of Pennsylvania. On April 19, 2018, the war criminal Mohammed Jabbateh “Jungle Jabbah” was sentenced to 30 years imprisonment after being found guilty of two counts of fraud and two counts of perjury in connection to his false reporting on immigration documents. In the community of East Landsdowne, Pennsylvania Mohammed Jabbeteh seemed like a family man. He arrived in the United States in the late 1990’s under an application for US asylum and obtained permanent residence. Between the end of the First Liberian Civil War in 1998 and before his arrest in 2016, for all intents and purposes, Jabbateh was living his American immigrant dream. He had married, started a family and ran a business named Jabateh Brothers Loading Services that ships containers to Liberia. However, before his arrival to the US, Jabbateh had taken on the nom de guerre “Jungle Jabbah” and had terrorized Liberians as the commander of the rebel group the United Liberation Movement for Democracy in Liberia (ULIMO). Jabbateh stood accused of personally ordering troops to commit such acts as the murder of civilian noncombatants, the sexual enslavement and public raping of women, torturing civilians, and conscripting child soldiers. His trial began and ended in October of 2017 and included the testimony of 20 witnesses who were flown from Liberia. Over the course of the 3-week trial, witnesses testified to the horrific atrocities they had been subjected to by Jungle Jabbah’s unit. One witness testified about her repeated rapes at the hands of an officer at 13-years-old, another testified that she was forced to cook the heart of two men, including her husband, at the request of Jungle Jabbah for him and his crew to eat, and another testified that in an act against a rival commander, he beat and then shot his pistol into the vagina of her 4-months pregnant sister leaving her to die in the street. Despite these atrocious acts, the indictment convened not on his alleged war crimes and crimes against humanity but on his false reporting on immigration documents. Jabbateh had previously indicated on his records that he was a member of the ULIMO seeking asylum but reported false statements about his Liberian wartime activities and denied that he had secured asylum fraudulently. The Department of Justice has started to use unorthodox ways to prosecute war criminals in US jurisdiction, and immigration-related charges are becoming the go-to prosecution strategy. This strategy also presents a unique question of sentencing and how much each court is willing to consider the defendant’s history of criminal activity in relation to his immigration charge. The court must then determine where to place the defendant within the sentencing range suggested by the U.S. Sentencing Guidelines. Even still, the case represents the first time that victims of the First Liberian Civil War were able to testify in front of a criminal court. Jabbateh is also the first to be convicted of crimes from the First Liberian Civil War and his sentence of 30 years is one of the longest sentences for immigration fraud in US history. Alain Werner, director of Civitas Maximas has said about the trial, ““For years we have been working tirelessly to pursue justice for victims of the most atrocious crimes. Astonishingly, Liberian victims have been denied justice in their own country so they had to find access to justice elsewhere. The Jungle Jabbah case is an expression of these efforts.” His trial will hopefully be the first of many and begin a new era where alleged war criminals can no longer seek to hide in the US with impunity. For more information and to learn how to further support this effort please visit The Liberian Quest for Justice. Civitas Maxima and the GJRP will be leading outreach campaigns and will be monitoring the upcoming trials of alleged Liberian war criminals expected to happen in 2018 and 2019. They have launched a crowdfunding campaign for the continued support of Liberian victims in their fight for justice. About the GJRP The Global Justice and Research Project (GJRP) is a Liberia-based non-profit, non-governmental organization that documents war crimes and, where possible, seeks justice for victims of these crimes, with the full consent of the victims. For more information and media inquiries go to www.globaljustice-research.org or contact the GJRP director by phone: 00231778160062. About Civitas Maxima Civitas Maxima (CM), based in Geneva, ensures the coordination of a network of international lawyers and investigators who work for the interests of those who have been victims of international crimes, particularly war crimes and crimes against humanity. For more information and media inquiries, go to www.civitas-maxima.org or contact via email: info@civitas-maxima.org or by phone: 0041223461243.

By: Luna Martinez Gomez On April 14, 1912, the RMS Titanic collided with an iceberg. Most of us are familiar with the tragic story of the Titanic shipwreck, dramatized by Leo and Kate into a story of unrealized love and sunken diamonds. However, few people are aware of the challenges that international lawyers faced 104 years ago over litigation concerning the ship's sinking. Who could recover for the loss of personal property, cargo, human life, and the ship itself? These questions were riddled with difficulties. The vessel was owned by a British company but sank in international waters on its way to New York. Further, those aboard her maiden journey hailed from all over the world. Could the U.S. apply its liability laws? Could the case be tried before United States courts? The iceberg that triggered Titanic’s descent into the annals of history contributed to complicating the case. A robust body of jurisprudence existed to deal with conflicting international laws in response to a collision at high seas between two ships. Yet, it was unclear whether the law of the [ship's] flag should also apply to the loss of a vessel by striking a foreign object. The U.S. Supreme Court ruled that the law of the flag determined whether a cause of action existed against a shipowner, but the law of the country in which the action was brought (lex fori) determined if and to what extent the shipowner may limit liability. This resulted in a bewildering puzzle of hypotheticals. What if an action for wrongful death was limited to one amount by the law of the forum, and to a different amount by the lex loci? What if the vessel belonged to a state that allowed a right of action for a cause not recognized by U.S. maritime laws? The above is just one example of the conflicts of law that countries face when responding to maritime misfortunes. These issues are further highlighted by the universal interest in protecting human life in the high seas, ensuring the integrity of mercantile relations, and allowing countries to assert their autonomy and sovereignty over their property. Titanic’s sinking a century ago is but one cautionary tale of the way in which fragmented legislation often leads to frictions in the field of international law.

By Stephen Dockery Widely divergent views of data privacy continue to be a thorn in the side of American-European relations. And until that gap narrows, there is unlikely to be a calm in the legal challenges that are roiling the international business community. Most lately in the case United States v. Microsoft Corp, seen before the U.S. Supreme Court at the end of February. The U.S. tech company has resisted turning over access to customer data stored in foreign jurisdictions pursuant to the Stored Communications Act (SCA), on the grounds that the data handover would put the business afoul of Irish government data privacy regulations. Following a favorable ruling in the Second Circuit, the case was argued before the Supreme Court on February 27. The argument focused on the nature of the statute, the types of foreign contacts involved and whether the government was trying to compel disclosure of information by warrant or subpoena. Issues raised by the justices included how foreign data storage could be used to evade U.S. enforcers and whether the disclosures could be made voluntarily. Justice Breyer focused on the reasonable interpretation of the SCA and how sovereignty and comity issues with foreign powers could be handled under existing judicial doctrines. His questions point toward a long-running crisis of confidence between Europe and the U.S. which underlie the recent spike of data privacy litigation in American and European Courts. The spark that ignited the data conflict goes back to 2013 when American data surveillance programs such as PRISM, came to light after leaks from former NSA contractor Edward Snowden. The reports led the Court of Justice of the European Union, the highest court in the EU, to toss out the data transfer framework that had been used to govern information handling by companies doing business between the two continents. Companies had been able to self-certify data privacy standards under the agreement known as Safe Harbor. After extensive negotiations involving the U.S. Department of Commerce and their European counterparts, the parties put together a new privacy agreement called Privacy Shield, which was announced in 2016. That agreement has been continually challenged in Europe on claims that the new agreement still does not meet European privacy standards because of the existence of the American spying programs. A recent challenge to the regime was tossed out on standing grounds. A challenge to standard contractual clauses, that have been used by companies to try to meet European data requirements was recently referred to the European High court. The data storage and data transfer space remain very much in flux, and at the heart of all this litigation is a fundamental difference of opinion on the protections afforded to an individual’s privacy. Europe has a powerful pro-privacy tradition that has been memorialized in such documents as the Charter of Fundamental Rights of the European Union.  American privacy protections have been arguably less formalized and there have been contrary actions such as the Foreign Intelligence Surveillance Act which directly empower data collection. American intelligence agencies can still scoop up massive amounts of data at home and abroad, which is something that gives country data protection authorities and privacy advocates pause. European concerns range from acceptable remedies for privacy violations to assurances of limits to American foreign data dragnets, issues that trade negotiators cannot address in full. There is a dissonance of privacy rights and procedure between Europe and America that remains unaddressed since the 2013 revelations came to light. So long as remedies and assurances remain elusive, legal challenges and uncertainty will likely continue to disturb the transcontinental marketplace. The CLOUD Act, which parties alluded to during the Microsoft case oral argument, is a pending bill that could meaningfully alter some of the issues between the US and EU on data privacy in the enforcement sphere. It would allow American prosecutors easier access to information held abroad and establish a procedure for foreign enforcers to access data held by American firms. The bill has been hailed by some legal experts as fixing the enforcement problem and panned by the Electronic Frontier Foundation as “a dangerous expansion of police snooping.” Even if the CLOUD Act passes a larger reconciliation, to put privacy authorities at ease and provide definitive remedies for European individuals harmed by privacy violations, may be needed to calm the data privacy waters.

On March 14 1975, representatives of some eighty-one States along with ten intergovernmental organizations and agencies gathered in Vienna and opened the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character . Their intention was to create a uniform set of standards governing the diplomatic privileges and immunities of representatives of international organizations to states and state representatives to international organizations. The Convention to which 41 states became a party, however, failed to enter into force. Hence leaving the matter to be resolved through a myriad of complex international and domestic rules. While with its own applicable conventions, the UN remains an exception to this ambiguity, due to this failed attempt many international organizations still perform in a complex legal framework primarily bound to their host states despite fulfilling neutral diplomatic functions up until today.

By Dru Spiller Voting is a central part of civic duty and a basic element of democracy. Despite its importance, this right is often denied to individuals who have been convicted of a crime. In a 2004 case, Hirst v. United Kingdom, the European Court of Human Rights ruled that a blanket ban on prisoner voting was unlawful and a breach of prisoners’ human rights. The court held that “‘[P]risoners in general continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save for the right to liberty […]’, and that ‘[a]ny restrictions on these rights must be justified.” The court introduced a proportionality concept to the case. The European Court of Justice elaborated on this concept in the 2015 case of Thierry Delvigne v. Commune de Lesparre Medoc and Prefet de la Gironde, declaring that EU member states may use a proportionality test to “take into account the nature and gravity of the criminal offense committed and the duration of the penalty.” In 2016 Penal Reform International published a brief from eight international law firms reviewing the global extent of disenfranchisement of detained persons. They found that in 45% of the jurisdictions studied imprisonment is automatically followed by disenfranchisement. They also found that in 55% of the jurisdictions prisoners who did have the right to vote were often still facing restrictions and/or conditions, usually based on the severity or type of offense and/or length of the sentence imposed. Prisoners may vote in countries like Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. Post prison time, a majority of the countries reinstate prisoners right to vote. It is only a minority of countries whose disenfranchisement is not automatically reinstated post-release: Belgium, Luxembourg, Kuwait, Poland, and the United States. The United States locks up more people, per capita, than any other nation in the world. This is especially concerning given that the majority of states restrict or heavily condition prisoner’s rights and access to voting. Out of fifty, only Maine and Vermont allow prisoners to vote while incarcerated. Once released back into the general population, thirty-five states further exclude ex-convicts on parole and another thirty-one states exclude persons on probation. Prisoners convicted of specified offenses may vote after a waiting period in eight states and four states deny the right to vote to anyone with a felony conviction. In 2016 an estimated 2.5% of the voting age population, excluding Washington, D.C., could not vote do a felony conviction. Felon disenfranchisement disproportionately affects people of color and lower income communities. Over 7.4% of the total adult African American population is disenfranchised in the US. Some states even have rates rising above 20%. These high rates are partly due to discriminatory effects of federal and state legislation such as mandatory minimum sentencing and the bail system. It is also an effect of a criminal justice system that is historically tied to oppression and discrimination. Disenfranchisement laws were brought to America by European colonists from a time when criminals were banished and ostracized. These laws became popular after the passage of the Fifteenth Amendment opened up the vote to newly freed African Americans, as a way to employ race-neutral means to exclude blacks from voting. A 2013 report from the OHCHR stated that “The felony disenfranchisement laws, policies and practices of the United States are inconsistent with general principles of international human rights law, norms and standards. These practices are not only in direct violation of U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR) [Article 25] but they also contravene the principles as established by the Universal Declaration of Human Rights (UDHR) [Article 21] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [Article 5], and the American Declaration of the Rights and Duties of Man (ADRDM) [Article XX].” As part of their recommendations, the Committee has also called for the restoration of voting rights to people released from prison and raised concerns that the practice of denying voting rights to people with felony convictions disproportionately impacts minority groups and are counterproductive to efforts to reintegrate those exiting prison. Disenfranchisement laws do not serve any purpose in nations that seek to reintegrate and re-educate citizens convicted of crimes rather than to ostracize them. These laws strip the presently and formerly incarcerated of a means to voice their opinion and enact legislative change that could benefit their communities. The stripping of these rights is especially concerning as it disproportionately affects communities which have historically been discriminated against in other ways.

By Julia Jacovides On this day in 1989, Iran broke off diplomatic relations with Britain for its refusal to denounce Salman Rushdie and his novel, The Satanic Verses. On February 14, Ayatollah Ruhollah Khomeini had issued a fatwa calling for Rushdie’s death and, though Britain admitted the book was insulting, it did not support the fatwa. The Satanic Verses follows the lives of two Indian expatriates, both Muslim, living in England and struggling to connect with their faith. Critics accused Rushdie of “blaspheming Islam.” From the Archbishop of Canterbury to the foreign secretary, the British establishment similarly denounced the book. Even Jimmy Carter referred to it as an “insult to the sacred beliefs of” Islam. Rushdie’s supporters maintained that Rushdie’s freedom of expression allowed him to pen any type of novel, including this one. “A novel is an essentially playful undertaking,” one said, “and this is an exceedingly playful novel.” With the help of a small circle of literary friends, Rushdie went into hiding. He has lived under police supervision since then. Bookstores across the United States and the United Kingdom, where Rushdie lived at the time of publication, continued to sell the book despite periodic attacks and occasional bomb scares. Riots took place in Islamabad, Kashmir, and New Delhi; there were deaths at each. Two bookstores in Berkeley, California were firebombed; each carried The Satanic Verses. Britain had only reopened its embassy in Tehran a year earlier, nearly ten years after the 1979 Iranian Revolution. It took another ten years for the two countries to formally reestablish full diplomatic relations. In 1998, the Iranian government abandoned its support of the fatwa as part of an effort to normalize relations with the United Kingdom. In February 2016, Iranian news outlets raised $600,000 “to add to the fatwa” on Rushdie.

By Sam Mottahedan Education has been formally recognized as a human right since the 1948 Universal Declaration of Human Rights. Article 13(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) provides ‘the right of everyone to education’. Article 2 of Protocol 1 of the European Convention of Human Rights (ECHR) similarly provides that ‘no person shall be denied the right to education’. While all of these treaties imply that the right to education applies to all persons, including, therefore, to all persons in prisons, the right of prisoners to education remains problematic in both European human rights law and practice. A Limited Right: ECHR Jurisprudence on Prison Education Rather than interpret Article 2 of Protocol 1 as imposing an obligation on the state to make available a particular type of education, the European Court of Human Rights (ECtHR) in Velyo in Velev v. Bulgaria constructs the Article as guaranteeing only access to ‘existing’ educational facilities, including in prisons where there are none (para.31).  In contrast, the Committee on Economic, Social and Cultural Rights (CESCR) considers that the right to education consists, inter alia, of the ‘availability of functioning educational institutions’ that are ‘accessible to everyone, without discrimination’. By focusing exclusively on accessibility, the ECtHR fails to provide genuine substance to the right to education, with particular detriment to the right to education of prisoners. A parallel could be made with Golder v UK, where the ECtHR recognized that the right to a fair trial implied a right to a court. In Golder, the Court understood that if Article 6 concerned exclusively the ‘conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of the text, do away with its courts’ (para 35). In a similar vein, would the ECtHR allow states to wholly ‘do away’ with educational facilities? In the context of primary, secondary and higher education, the question may seem hypothetical, both because of the existence of other human rights protections and due to political pressures for the availability and fair distribution of public services. However, as the Special Rapporteur to the right of education, Vernor Muñoz has noted, the major barrier to the education of prisoners is public opinion, ‘often indifferent and ignorant of detention’. ‘These [public] attitudes are fuelled by an often equally ill-informed and ill-advised media which […] focuses almost exclusively on unrepresentative individual violent events’. The ‘ready willingness of politicians to reflect these fears in penal policy’ results in a general reluctance to legislate prisoners’ right to education, and facilitates ‘an environment inherently hostile to its liberating potential’. Conclusion – Proposing a new legal framework The ECtHR should adopt three interrelated approaches towards the right to prison education. Firstly, the court should consider, as it did in the context of health-related rights in Kudla v Poland, that, ‘given the practical demands of imprisonment’ (para 94), education must be secured in prisons. In this regard, the court would find support from a range of European initiatives that have emphasized the importance of prison education in combating the negative and deskilling effects of imprisonment and in ensuring prisoners’ reintegration. A key document is the 1990 Recommendation of the Council of Europe on Education in Prison, the preamble to which considers that education in prisons helps to humanize prisoners and facilitates their reintegration. Secondly, the ECtHR must address the question of what can be considered as an acceptable level of educational facilities in prisons? Although neither the CESCR nor the ICESCR provides guidance on what availability means in the context of prison education, such guidance can be found, in the UN Mandela Rules as well the European Prison Rules, which recommends, inter alia, education that meets ‘individual needs’ and is integrated with the educational system of the country. Lastly, the ECtHR should consider whether prison education is itself a human right. In Vinter v UK, the Court held that a prospect of release for detainees is necessary because ‘human dignity’ requires that there must be a chance for a prisoner to move towards rehabilitation. The ECtHR's recognition of ‘human dignity’ should similarly be engaged in the context of prison education. In his report on prison education, Muñoz observed that as ‘human dignity […] implies respect for the individual, in his actuality and also his potential’, education which ‘is uniquely and pre-eminently concerned with learning, fulfilling potential and development’ should be a fundamental concern in prisons. Human dignity is a disputed concept. However, where prisoners are provided with no education to access, along with no agency to address its absence, can it actually be argued that the human dignity of prisoners is being respected?

By Dru Spiller On this day in 1922 Great Britain declared limited independence for Egypt following the conclusion of a campaign for independence that began in 1919. The UK government issued a declaration called the Unilateral Declaration of Egyptian Independence that unilaterally ended its protectorate over Egypt (in place since 1914) and granted independence save for four  reserved areas: foreign relations, communications, military, and Anglo-Egyptian Sudan. The Egyptian revolution started in 1919 and was fought against the British occupation of Egypt and Sudan. Nationalist agitation had been mostly concentrated on the population of the elite but became more widespread as Britain continued to drag Egypt further into their fight in World War I. The British conscripted over 1.5 million Egyptians into the Labour Corps and requisitioned large swaths of property and animals for the use of the army. After the War armistice in November a delegation of Egyptian nationalist activists led by Saad Zaghloul initiated a meeting with the British to ask for the end of the British protectorate. Fearing the massive popular support for both Saad Zaghlul and the Wafd Party, the British government ordered the exile of revolutionary Egyptian Nationalist leader Saad Zaghlul and other members of the Wafd Party (Egyptian Delegation Party). Throughout the end of March 1919 grassroots disobedience went on in protest of the exiles and ended with at least 800 Egyptians dead and numerous villages burned down. In December of 1919 the British government sent the “Milner Mission” (named after Alfred Milner) to conduct an inquiry about the causes of the revolt and make a recommendation about the political future of the country. In February of 1921 the commission report recommended that the protectorate status be abandoned leading to the eventual unilateral declaration on February 28 1922.

By Edward Richter The United States (US) is on a collision course with China over the South China Sea. US attempts to enforce international law are weakened by erosion of the status of international law caused by the US, Russia, and China over the last few decades. The US was the first of these states to reject the binding power of international law when it rejected a ruling of the International Court of Justice (ICJ) in 1986. The US utilized its position as a permanent member of the United Nations (UN) Security Council to prevent the ICJ from penalizing it for supporting the Contra rebellion against the ruling Sandinista government in Nicaragua. This kicked off the long trend of the to cooperate with international legal bodies, flouting international norms, and refusing to recognize the jurisdiction of a number of international courts and tribunals. Notably, post-Nicaragua the US has refused to take part in the ICJ, the International Criminal Court, and denied ratifying the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The latter choice now proves costly, as the US engages to enforce international law in the South China Sea. This attempt reveals an apparent double standard, as the US refuses to ratify the very convention it now seeks to enforce. In 2013 Russia arrested a Greenpeace ship flagged for the Netherlands which was protesting a Russian oil platform in the Barents Sea. Following the US example of avoiding international courts, Russia refused to accept the Dutch request to release the vessel and crew under Article 292 of UNCLOS in exchange for a security bond. In response the Netherlands filed petitions with both the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA). Their action sought the ship’s release and money damages for violating UNCLOS, which both Russia and the Netherlands have signed. However, Russia rejected the tribunal’s jurisdiction and refused to appear before it when requested. The tribunal ruled that it did have jurisdiction and convicted Russia in absentia, but the country refused to pay damages or accept jurisdiction. China has since followed suit in rejecting the authority of UNCLOS. This came after various Southeast Asian countries and the US complained about China’s expansive territorial claims and aggressive behavior in the South China Sea. The claims in question concern the now famous Nine-Dash Line, which encompasses much of the South China Sea. Whether China asserts sovereignty over the entire oceanic expanse or just the land within the area is unclear, as is how much of China’s actions are simple negotiating tactics, but its creation of artificial islands and harassment of Philippine and Vietnamese fisherman are a source of concern to other nations in the region. Due to these concerns, in 2013 the Philippines took action and brought a case against China before the PCA for maritime delimitation. The Philippines argued that China’s territorial claims to the South China Sea and construction of artificial islands violated the terms of the UNCLOS, which both China and the Philippines have signed. The tribunal determined that it did have jurisdiction over the case but China condemned and refused to recognize the ruling, resembling the practice of the US and Russia. Accordingly, when the tribunal struck down China’s claim to sovereignty over the entire South China Sea, the Chinese Foreign Ministry issued a statement rejecting the verdict, stating that it “does not accept or recognize it” and the award is “invalid and has no binding force.” Instead, China continued with the status quo while concluding a generous series of trade deals with the Philippines in seeking to exploit the growing gap between Filipino President Rodrigo Duterte and the US, thereby rendering the judgement of the tribunal entirely moot. Following the US and Russia’s example, China has continued to flout international law with total impunity in the South China Sea. China’s position as a permanent member of the UN security council insulates it from foreign legal pressure, its economic might protects it from sanctions, and its military means ensure that no other sovereign can force it to abide by norms and rules of international law. This in turn prevents any amicable means of resolution in the South China Sea, as China simply ignores any UNCLOS ruling that does not favor it. Similarly, the US’s own track record of non-compliance with the rulings of international courts and refusal to ratify UNCLOS in the first place limits its ability to use international law to resolve the growing conflict. Accordingly, the failure of both parties to resolve this matter using international law may escalate the tensions between the US and China in the region. This tension can be readily observed in the current undertakings of both the US and China. China continues building islands to serve as military bases from which it can project the military power needed to secure its claims and grant it de-facto control over the territory. The US meanwhile authorizes ever more aggressive Freedom of Navigation Exercises (FONOPs), wherein US navy vessels intentionally sail through the disputed waters as a means of signifying lack of Chinese control and sovereignty over the disputed region. This raises tensions in the region leading to boat collisions, harassment of naval vessels, and even Chinese seizure of a US drone. Thus, due to the breakdown in international law and the escalating tension in the region, two of the world’s mightiest nations find themselves on a collision course with no clear resolution to the growing crisis.