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By Jackie Momah The use of alternative methods of funding for arbitral proceedings is not a new development. Organizations have previously used institutional loans, contingency fees and other methods of funding. However, the form of third party financing referred to in this context differs. This form deals with a scenario in which an arbitral proceeding has already been contemplated and a party (usually the claimant) then secures funding from a third party. In return the third party receives a share of the award given at the end of the proceedings if successful. The use of third-party funding (TPF), of this kind, to finance arbitral matters is a new development in the world of international arbitration. Although recent, this development has made a substantial and arguably permanent impact on international arbitration. In a private dispute settlement mechanism like arbitration, in which arbitrators are party appointed, some ethical and procedural red flags are raised with the involvement of TPF. This results from the need to prevent conflict of interest. As such, it comes as a surprise that this area of international arbitration is not adequately regulated. This therefore begs the question, as to whether this is a deliberate omission or merely a lack of oversight. As is characteristic of any new development in society, there is the issue of whether the law can develop at the same pace. This is necessary to better regulate these emerging sectors and avoid legal blunders. This has been evident in various legal sectors, most recently in the fast-paced world of technology, in which new developments are made and the law is left to play catch up once a problem presents itself. A window of opportunity has been opened for a scenario like this to occur in the world of arbitration due to the emergence of third party financing. This issue arises as a result of the need to prevent conflicts of interest in arbitral proceedings through the use of disclosure. A fundamental aspect of any arbitral proceeding is the need for the arbitrator to be independent of the parties involved in a dispute. A lack of independence, for obvious reasons, can compromise a claim and result in the annulment  of any award given. As such, in the best interest of all parties involved in a dispute, it is required for the arbitrators and the parties to disclose any potential conflict of interest that may exist. However, this requirement has not been extended to TPF. As the use of TPF in international arbitration has increased, so has the various individuals that play a part in these disputes. Previously, involvement was limited to the parties participating in a dispute and the arbitrators. At this level, with only these participants, disclosure is relatively straight forward. With the involvement of third-party financing and funders, another layer of potentially conflicting relationships is added to a dispute. Now, funding relationships extend to various funding institutions, specialized third party funders, hedge funds, investment banks and more. As such, there is the potential for party appointed arbitrators to have possibly biased relationships with these various funders. With this addition, one would expect the law to grow and accommodate their presence by tackling the substantially increased potential for a conflict of interest to occur. The law however has not done this, and surprisingly as it stands, there is no binding international requirement or framework to disclose the presence of third party funders in an arbitral proceeding. A space has therefore, been created for a conflict of interest to occur - one that could lead to the waste of time and resources, and also threaten the overall outcome of an arbitral proceeding. Aware of the threat presented by the involvement of TPF, the International Bar Association published its revised practice rules and guidelines for use in international arbitration. Its general standard 6a and 7b, tackle this issue. These guidelines essentially include the requirement to disclose the presence of third party funders. However, these guidelines are not binding and require the further implementation of domestic state law to compel such disclosure. In addition, the International Court of Arbitration has also weighed in on the issue.  However, it only requires arbitrators to consider disclosing such relationships as a potential conflict of interest. These measures, therefore, only skirt the issue, thus leaving the window for a conflict of interest ajar. As a result, arbitral tribunals are unable to deal with these conflicts ahead of time. International arbitration is therefore left to react to scenarios in which conflicts of interests present themselves. In the process, making the problems attributed to the lack of adequate regulation of TPF’s in this field, unavoidable. States such as Singapore and Hong Kong are aware of this threat and have taken steps to implement mandatory disclosure of TPF’s involved in an arbitral dispute. The threat posed by this potential conflict and the measures taken by other countries to deal with this, could arguably indicate a lack of international and domestic oversight in this area. It is however evident that some compelling reasons exist for the lack of regulation of TPF’s in international arbitration. These perspectives could suggest that the current climate for TPF in this field is a choice, as opposed to a lack of oversight. It has been recognized that requiring stricter regulations will open the doors to disclosure in a manner that could unfairly hurt a claim. Thus, it may be stated that greater regulation may lead to the need to disclose more than just the presence of a funder. Disclosure beyond this could be prejudicial to the party enlisting the help of a funder. Requiring a party to go into detail on whom their funder is and the particulars of their agreement could unfairly hurt their claim, and deter the future use of this financing mechanism. Additionally, mandatory disclosure would burden parties in a dispute with unnecessary and wasteful discovery. Further reasons include that the explicit and binding requirement for disclosure of TPF involvement in proceedings, runs the risk of unnecessary disqualifications of claims. These disqualifications are opposed to attempts made to decipher potentially difficult questions. These reasons were offered by some leading funding institutions in response to a recent proposal made to amend Local Rule 3-15. This proposal was made to the U.S. District Court for the Northern District of California. The proposal dealt with local litigation funding as opposed to third-party arbitration funding. However, it is arguable that decisions made in this field have the potential to impact TPF in arbitration. This proposal required the automatic disclosure of TPF arrangements in every civil case filed, by specifically including the words ‘litigation funders’. In response to this, various litigation and arbitration funding institutions such as Burford Capital and Bentham IMF expressed their disapproval of this amendment. After deliberating, in February, the court dropped the proposed language, only requiring disclosure in limited scenarios. Decisions such as this, and the industry views behind them may indicate that the lack of regulation of TPF regarding disclosure in international arbitration, may be the result of choice as opposed to oversight. In all, whether the result of choice or a lack of oversight, only time will tell if the world of International Arbitration will be forced to adequately adapt to these changes or remain in the reactive as opposed to proactive position in which it currently finds itself.

By Sara Birkenthal On April 7, 1906, The Algeciras Conference gave France and Spain control over Morocco. The Algeciras Conference took place in Algeciras, Spain from January 16 to April 7. The purpose of the Conference was to find a solution to the Moroccan Crisis of 1905, which arose after Germany tried to keep France from creating a protectorate over Morocco. The final Act of the Conference outlined a strategy for the organization of Morocco’s police force, and the formation of a State Bank of Morocco. Further, it established the right of Europeans to own land in the country, with taxes put toward public works projects. The Algeciras Conference may have “resolved” the crisis in Morocco, but it left the country a pawn in the European powers’ quest for land, resources, and cultural capital. Imperialism left Morocco both positive legacies in the form of the development of its transportation, communications, healthcare, and education sectors, and negative legacies, including large wealth disparities and high illiteracy rates. However, Morocco was not deprived of its personality in international law, according to an International Court of Justice statement, and thus remained a sovereign state.

By: Iosif Sorokin On April 1, 2001, a US reconnaissance aircraft carrying 24 crew members collided with a Chinese fighter jet above the South China Sea. The area where the collision took place is highly contested as it falls within China’s exclusive economic zone under the Law of the Sea Convention. China claims that this precludes other nations from conducting military operations within this area, but this has been contested by the US, which has performed numerous freedom of navigation operations in the South China Sea. Following the mid-air collision the Chinese pilot was able to eject from the cockpit, but his body was never found and he was declared dead. The collision caused the US aircraft to dive 14,000 feet and nearly invert before its pilot regained control and completed an emergency landing on the Chinese island of Hainan. The 24 member crew was held on a military installation on Hainan while US diplomats negotiated their release. As part of the negotiations, the US ambassador to China delivered a letter to the Chinese foreign minister stating that the US was “very sorry” for the death of the Chinese pilot and “very sorry” for entering China’s airspace and landing without verbal clearance. Although this lead to further disagreement over whether this amounted to an apology or merely an “expression of regret or sorrow,” the crew was ultimately freed after 10 days and the aircraft was returned several months later.

By: Lauren Kelly-Jones In December, in a fully-booked luxury hotel in the Austrian Alps, guests went to their doors and couldn’t open them. Something was wrong. In the middle of winter, beside the cold Turracher lake the computers went dark. It was the first weekend of ski season, and the entire door-key system of Romantik Seehotel Jägerwirt ( a 111-year-old hotel) had been taken down. Hackers demanded that the hotel hand over €1,500 (around $1,600, payable in bitcoin) to restore their systems. Because management felt as though they had no choice, they did so. Then – systems back up, doors unlocked – they went public, to warn others of the dangers of this kind of cybercrime: a modern twist on criminal blackmail. “Ransomware” is in itself not a new concept: in a typical scenario, an entity’s data is encrypted and made unavailable until a payment is made. For instance, in California in February 2016, a hospital was forced to pay $17,000 in bitcoin to free its computers of a hacker’s virus. And yet, the Seehotel Jägerwirt attack is seemingly the first report of ransomware involving a physical device of this scale: the “Ransomware of Things,” or “jackware.” This kind of ransomware has the potential to control connected, intelligent objects in the real world. The risks are all too obvious: AT&T has highlighted the concept of a smart car being hacked with its ignition or brakes remotely controlled; in 2015, a hacker claimed to have taken over a plane’s engine controls; in Finland last year, a DDoS attack halted heating in two buildings in the middle of winter. Martin Kleczynski, CEO of Malwarebytes, explained to WIRED Magazine that “my prediction going forward is that we’re not only going to see ransomware focused on data, we’ll see more ransomware focused on other ways to disrupt a business.” The growth of a thriving criminal infrastructure in cyberspace is an increasingly serious threat that reaches across geopolitical boundaries. As the sophistication of cybercrime increases, so should the urgency of international law’s approach. What is the Law? There is no single international framework for cybersecurity law, but there are multilateral efforts to address it, and a growing consensus that establishing such framework is a pressing obligation. Custom – a source of international law – requires general state practice that is performed out of a sense of legal obligation. According to an article in the Chicago Journal of International Law, international agreements like the Budapest Convention, the African Union Convention on Cybersecurity and Data Protection, and the various Association of Southeast Asian Nations working groups on cybercrime are evidence of opinio juris. Arguably, States are acting in the belief that they have an obligation to “enact and enforce cybercrime laws within their territories and to cooperate to prosecute and extradite cybercriminals.” At the Budapest Convention on Cybercrime (2001), the Council of Europe aimed to “pursue a common criminal policy aimed at the protection of society against cybercrime.” Signatories promised to adopt domestic legislation to establish procedures outlined in treaty, cooperate through mutual legal assistance, even if there were no more specific agreement, and to prosecute cybercrimes committed on their territory. The latter – an issue of safe haven, where perpetrators can commit crimes in one country while sitting in another – is critical to the need for international cooperation, as many cybercrimes are international in scope. A nonbinding U.N. General Assembly Resolution calls on States to “eliminate safe havens” for cybercriminals. But – can the Budapest Convention evolve to tackle new ransomware threats? Microsoft has called the Convention a “gold standard” that is looked to when crafting cybersecurity programs, but multiple countries (Brazil, China and India, etc.) are non-signatories, and there are calls that the treaty is insufficient. There is need for a new instrument. In its absence, some regions have taken things into their own hands. The African Union Convention on Cybersecurity and Data Protection (2014) was welcomed as a “landmark” initial step to create a legislative framework for cyber security and data protection in the African region. It addresses (1) electronic transactions, (2) personal data protection, and (3) cyber security and cybercrime. Under the convention, each nation would be required to develop a national cybersecurity strategy, and to pass cybercrime laws. In January 2016, the EU Parliament approved the EU Network and Information Security (NIS) Directive, which was designed to raise cybersecurity capabilities across EU member states. The directive aims to “increase cooperation between member states and lay down security obligations for operators of essential services and digital service providers.” In April 2016, the EU General Data Protection Regulation was adopted, which will “extend the scope of the EU data protection law to all foreign companies processing data of EU residents.” Any company that controls or processes the personal data of Europeans through the offering of goods and services – even if the company has no physical presence in Europe – will be impacted. Both compliance rules come into full effect in May 2018. In the United States, the Department of Homeland Security’s guidelines for securing “The Internet of Things” suggest implementing security at the design stage, constantly updating systems, and promoting transparency. They also make clear that a “splintered” set of standards and rules will compromise innovation and security. The need for a global, evolving, modern agreement to address cybersecurity and the growing international threat of the Ransomware of Things is very clear. For their part, Romantik Seehotel Jägerwirt have decided to take inspiration from their “great-grandfathers,” when they address cybersecurity in the wake of the attacks. When they renovate rooms, they will install old-school door locks and keys.

By Jiarui Wang On March 24, 1954, Hungary and the U.K. held a bilateral talk to resume the countries’ economic relations that had ended after a trade embargo since December 1950. The British government imposed the embargo after the Hungarian government refused to release a British businessman, Edgar Sanders, who was sentenced to thirteen years for espionage. Given Sanders’ involvement with the British intelligence agency and similar cases emerging in Hungary, the Sanders trial drew substantial attention from the British media. The British government faced pressure to negotiate the release of Sanders. The breakdown of the release negotiation eventually led to a trade embargo. Another factor that triggered the strained bilateral economic relations was Hungary’s nationalization of industrial enterprises in the late 1940s. The nationalization resulted in confiscation of British-owned plants operating in Hungary. Prior to the embargo, the U.K. kept its economic relations with Hungary despite the tense relations between the British and the Soviet governments during the Cold War. The annual British imports from Hungary stood at £6.8 million in 1949. Arguably, the embargo affected the Hungarian economy more than the British economy considering Hungary’s loss of the exports as an important source of national income compared to the relatively low impact to the U.K. for losing a trading partner of imported food. In August 1953, the Hungarian government freed Sanders by an act of clemency after he was jailed for three years. Subsequently, Hungary expressed interest to resume economic and financial relations with the U.K. The trade talk that began in March 1954 concluded in the signing of a trade agreement in July 1956. The agreement stipulated that Hungary could export up to £12 million worth of agricultural and industrial products. In addition, 6.5% of the trade revenues were to be used to compensate the former British owners of the estates and plants confiscated by the Hungarian government during nationalization and to settle Hungary’s sovereign debts. Today, after 63 years of this bilateral trade talk, the U.K. remains one of the largest trading partners of Hungary.

By Ilya Akdemir Recent developments regarding the legality of Russia’s intervention in Ukraine Was Russia’s 2014 intervention in Ukraine and the subsequent referendum on the status of Crimea illegal under international law? Many believe so. While Russia has traditionally viewed the intervention as legally justified, recent statements by the ousted President Yanukovych and high-ranking Russian officials seem to contradict this position. Russia’s legal justifications for the 2014 intervention in Ukraine The legal justifications for Russia’s intervention are based on the letter of the Head of State of Ukraine at the time, Viktor Yanukovych. Yanukovych requested Putin and Russia’s Federation Council “to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defense of the people of Ukraine.” The letter, which was revealed by Russia’s UN Security Council representative, Vitaly Churckin, also speaks of an impending humanitarian disaster. It states that “the events in [Ukraine] . . . have placed Ukraine on the brink of civil war” and that the “people are being persecuted on the basis of their language and political beliefs.” From the Russian perspective, the legal justifications for Russia’s military intervention are clear – Russia was invited by Ukraine’s legitimate and incumbent head of state to restore order and protect Russian-speaking minorities in Ukraine. Put simply, it’s a case of intervention by invitation. Intervention by invitation – defined by the Institut de Droit International as the “direct military assistance by the sending of armed forces by one state to another state upon the latter’s request” – can be seen as one of the few exceptions to the general prohibition on the use of force in international law. The key element of any intervention by invitation claim is the validity of the “request.” Questions regarding Yanukovych’s requesting letter have thus been framed in terms of Yanukovych’s legitimacy and status as the Head of State of Ukraine at the time of the request. In essence, the question is whether Yanukovych was a legitimate and incumbent head of state when he sent the letter requesting Russia’s assistance. If yes, his request justifies Russia’s intervention. If no, then Russia’s intervention is illegal under international law. As a result, lawyers on both sides of the argument have focused on the question of Yanukovych’s legitimacy and status at the time that the letter was being written. According to Putin, Yanukovych was a democratically elected president at the time of the request, legitimate and incumbent, and therefore Yanukovych’s request is legal. But recently, a sudden change occurred in the Russian narrative, which was noticed by Russian commentators but has largely been ignored elsewhere. Apparently, there was never any “request” at all. Recent statements from ex-Presient Viktor Yanukovych and Putin’s Press Secretary Dmitry Peskov On February 22nd, 2017, Yanukovych gave an interview to the Russian media in which he stated that he “never asked to send troops to Ukraine,” a substantial rift with the established narrative on the legality of the intervention. Furthermore, on March 9th, Yury Lutsenko, Prosecutor General of Ukraine, posted on his Facebook page an official letter he received from Russia’s Prosecutor General’s Office. The letter states that “any statement by Yanukovych requesting the use of the Armed Forces of the Russian Federation on the territory of Ukraine has not been received or considered by the President of the Russian Federation or the Federation Council.” On March 16th, Putin’s Press Secretary, Dmitry Peskov stated that “no letter was officially submitted to the Russian presidential administration, [and] no such letter was registered in the administration.” All these statements seem to point towards a change in Russia’s policy towards Ukraine. From an international legal perspective, however, the issue is also deserving of attention, as it gives rise to new questions regarding the legality of the 2014 Russian intervention. First, if there was no request from Yanukovych – as Mr. Yanukovych’s comments seem to suggest – then Russia’s legal justifications for intervention in Ukraine based on the intervention by invitation exception are more uncertain than ever. Second, if there really was no letter, what is the nature of the document Vitaly Churkin demonstrated at the UN? The minutes of the UN Security Council meeting clearly confirm that Churkin referred to the document as a “request” and “a letter [that] is signed by President Yanukovych.” Even if Russia’s officials didn’t view Yanukovych’s statement as a request for intervention, it is certain that Churkin tried to represent it as such. It is important to note that the issue is still in development. On March 17th, 2017, Russia’s Foreign Ministry Spokesperson, Maria Zakharova, authored a post on Facebook stating that although there was a signed statement (not a letter) from Mr. Yanukovych, it was simply not registered in the Presidential Administration or the Federation Council. Zakharova adds that “the statement was signed by the President of Ukraine, and read out to the UN Security Council as very revealing information about the situation in Ukraine, but no decisions were taken on it in the Presidential Administration or in the Federation Council of Russia.” If, however, no decisions were taken regarding the Yanukovych statement, the legal basis for the sending of troops to Crimea becomes less clear. Further, it is inaccurate to say that no decisions were taken based on the “letter.” On March 1st, 2014, at the peak of the crisis, Russia’s Federation Council voted to approve Putin’s request to use Russia’s armed forces on the territory of Ukraine. The minutes of the discussions surrounding the vote show that Yanukovych’s invitation, which was apparently received by the Federation Council just an hour before the vote, played an important role in the decision to approve Putin’s request to send troops. Churkin later revealed the letter in the UN on March 3, 2014, two days after this vote. March 16, 2017, marked the third year since Crimea voted to join Russia. Russia’s view regarding the legality of the intervention which resulted in the Crimean referendum has been relatively consistent throughout this period. However, novel developments, particularly statements from high-ranking Russian officials, pose new questions regarding the legality of the intervention. This could, indeed, all be just a big mistake on the part of Russian representatives. Or perhaps, as some Russian commentators have pointed out, it’s a sign of an upcoming change in Russia’s approach towards Ukraine. What is certain however, is that, from an international legal perspective, these recent developments add further doubts to Russia’s narrative regarding the legality of the 2014 intervention in Ukraine.

By: Maximilian Oehl In his recent documentary, filmmaker Adam Curtis translates the term hypernormalization, originally created by Berkeley anthropologist Alexei Yurchak to describe Soviet Union’s late society, into today’s world. In his 2006 book Everything was Forever, Until it was No More: The Last Soviet Generation, Yurchak argues that while nearly everyone in the 1980s Soviet Union realized the malfunctioning of the political and societal system, the population still maintained a pretense of its functioning. This is what Yurchak terms the hypernormalization of the status quo – accepting an artificial world created by citizens and politicians alike as real although they know about its ‘fakeness’. Curtis contends that decision-makers worldwide, overwhelmed by the complexity of global politics, have started to create an artificial, simpler version of the world over the past decades. This ‘fake’ world blinds out the complexity of the real one and thus allows us as citizens, who play along with the ‘game’, to live with the reassuring feeling of knowing what is ‘right’ and what is ‘wrong’. This blogpost visits Curtis’s assertion from the perspective of international law. Can we discern evidence for his hypothesis from the way that states and non-state actors are applying international law today, including the way it is referenced in the media and civil society? Does it, at least at times, help create the pretense of a global society functioning along well-defined, commonly accepted parameters? The hypernormalization of the international legal order The main configurations of the international legal order post-WWII are most prominently rooted in the Charter of the United Nations. Accordingly, the international legal system is founded, inter alia, on respect for human rights and fundamental freedoms, on the principle of sovereign equality of states, non-intervention and the non-use of force. Habitually, most governments will, whenever they are announcing a new foreign policy, in one way or the other broach its legal basis and naturally assume the legality of their action. Yet, what do we – as observers of global politics – presume to happen whenever an international actor finds a certain policy that she deems to be highly beneficial to her interests to be in violation of international law? The scope of this post does not allow for a deep dive into public policy decision-making. Yet, speaking from a legal perspective, one can distinguish roughly between worst and best case scenarios. In the worst case, actors would not take into account the legal dimension of the issue at all and pursue the policy in any case; in the best case, actors would shape their policy according to the legal requirements. Maintaining this legal perspective, the phenomenon of hypernormalization occurs whenever actors have secretly decided to ignore the law – in part or as a whole – yet are publicly pretending to respect it. (It can, vice versa, of course also occur when one actor falsely accuses another actor of violating the law – yet, for reasons of simplicity (sic!) we shall focus on the first scenario here; also, the lines between a deliberate decision to ignore the law and tricking oneself into believing in the legality of a desired policy may, of course, often be blurred). The ‘faking’ effect is vigorously increased where the general public – typically first the media – adopts the official position without thorough investigation of the corresponding reasoning and evidence (potentially forced to do so due to a lack of available official information). Examples of the hypernormalization of international law, unfortunately, are easy to find. Take Colin Powell’s ‘anthrax speech’ in front of the UN Security Council in which he attempted to justify the invasion of Iraq in 2003 by pointing to the purported existence of weapons of mass destruction, for instance. Or consider the twofold ‘rise and fall’ of Muammar al-Qaddafi of Libya selectively as ally or enemy of the Western world, which Curtis portrays in his film. Recent examples are sadly provided by the EU’s responses to the complexities caused by mass migration – be it the temporarily widespread practice to pushback refugee boats in the Mediterranean Sea or the readiness to cooperate with Omar al-Bashir of Sudan, a suspect notoriously warranted by the International Criminal Court for accounts of crimes against humanity and genocide among others. Why do we generally presume the legality of our governments’ actions? Now in view of government actions like this, it seems to be apparent to a broader public audience, if perhaps not the majority, that our governments do not (always) prioritize the legality of their actions. Their policies are so bluntly contrary to international law – despite their contentions to the contrary – that they strike the eyes of many. This is all the more so in times, in which we regularly learn about the involvement of government officials in shady dealings through leaked diplomatic cables or phone calls. So why do many of us, at least the ones that generally put their trust in humanity, – a priori – continue to assume that our governments would be respecting the law, that its motives are righteous, in spite of all its illegal actions that we have learnt of in the past? Are we, somewhat half-consciously, buying into the ‘game’ of hypernormalization because we prefer to live in a comforting world, in which our government is constantly fighting to protect human rights, to foster good governance and sustainable development? The dangers of hypernormalizing international law As international lawyers we see ourselves confronted with the task to operate in a system, which at times may seem artificial – even or especially to us ‘insiders’. A system, which, founded on human rights and the principle of non-violence, is now and then degraded to a mere onlooker, for instance when civil wars break out in Syria or when genocide is committed in Sudan. In this context, lawyers from different disciplines and others frequently tend to ask what all of these ambitious rules are really worth, if they are so rarely respected? While I do not see a reason to be generally pessimistic about the project of a rule-based system of international cooperation and certainly think that it merits to be defended, we should be aware of the disservice we are actually doing it whenever we hypernormalize international law. As Yurchak points out, hypernormalization in the Soviet Union occurred because the current system was presented as being without any alternative. Influenced by corresponding education and propaganda, almost no one could imagine a world without or outside socialism. Eventually, the entire system collapsed and was abolished – when the gap between reality and the pretended world became so enormous that people could not ignore it anymore. In the case of the Soviet Union, there was an alternative – one that no one would have ever dared to address: capitalism. And likewise, there also are alternatives to the current configurations of international law: the law of the strongest, unimpeded power politics, nationalism or protectionism. If we step into the trap of hypernormalizing international law, we risk jeopardizing the system of a rule-based framework for international cooperation as a whole. To my mind, the recent nationalist backlashes, which are, quite tellingly, also specifically directed against international law itself, are at least partly rooted in a sentiment of being fed up with a system that is being presented as the norm and without any alternatives despite all of its apparent deficiencies. The need to elucidate international law To my mind, instead of presenting the international legal framework as the inevitable status quo, we should consistently attempt to elucidate international law and especially its actual effects. Absent a vigorous implementation mechanism, law and reality can grow miles apart in this highly politicized field of ours and we should be as frank as possible about it. This requires us to always identify the dichotomy of ‘is’ and ‘ought’ in the clearest way possible. Such, in turn, will often entail greater emphasis on the factual side of the real-life scenarios we examine – instead of approaching a set of rules in an isolated manner. For instance, more routinely integrating political and economic analyses in our discussions of legal norms could provide us with valuable insights as to why what actor has violated which rule – and to thus identify the ‘weakest’ components of the international framework. Finally, we must of course continue to hold the violators of international law accountable. Yet, where our means may be insufficient to effectively enforce the law, where institutional mechanisms, ‘naming and shaming’ and any other available instruments are failing, we should be frank and honest about it. In other words, we should continue to be confident of the project of the international rule-based system, yet without pretending that such would at all times be the obvious thing to do.

By Maribeth Hunsinger The plan was simple: overthrow Fidel Castro. On March 17, 1960, President Eisenhower signed a National Security Council directive approving a Central Intelligence Agency (CIA) proposal for covert action against Castro’s regime. The execution of this proposal ultimately led to the failed Bay of Pigs invasion in 1961. The CIA proposal, known formally as “A Program of Covert Action Against the Castro Regime,” called for the development of a guerilla force comprised of Cuban refugees (“Operation 40”) and the training of a Cuban paramilitary force (“Alpha 66”). The plan also included the placement a covert intelligence organization within Cuba and the creation of a radio station to broadcast into Cuba. The roots of Castro’s regime trace back to General Fulgencio Batista’s 1952 coup against President Carlos Prio. Batista forced Prio into exile in the United States. Castro’s revolutionary 26th July Movement emerged in the vacuum and eventually succeeded in overthrowing Batista’s government in the Cuban Revolution of 1959. Although the Eisenhower administration expressed recognition of Castro’s government, it grew increasingly wary of Cuba. The revolutionary government strengthened diplomatic relations with the Soviet Union and allowed the Communist Party to operate freely within the country. Meanwhile, anticommunism took a “central position” in the Eisenhower administration. Amidst growing concerns that Cuba would eventually pose a threat to the U.S. if left unchecked, Eisenhower ended diplomatic relations and suspended trade with Cuba in 1961. John F. Kennedy succeeded Eisenhower as President of the United States, and under his leadership the CIA launched a “definitive strike” in April 1961. The Bay of Pigs invasion was disastrous for the U.S., as the 1,400 American-trained Cuban refugees were outnumbered and surrendered to Castro’s forces after less than 24 hours of fighting. U.S. efforts to overthrow Castro persisted, setting the stage for the Cuban Missile Crisis of 1962 that strained relations even further between the U.S., Cuba, and the Soviet Union. Tensions between the U.S. and Cuba have continued through multiple decades and administrations. In 2014, Barack Obama and Raul Castro announced intentions to reestablish diplomatic relations between the U.S. and Cuba. It remains to be seen where the dust will settle as steps continue to be made toward restoring political and economic interactions between the two countries.

By: Maximilian Oehl On March 10, 1983 then US-President Ronald Reagan proclaimed that the United States would not be signing the United Nations Convention on the Law of the Sea (UNCLOS), which opened for signature in December 1982. In his Proclamation, Reagan justified his decision by pointing to the US’s discontentment with the Convention’s seabed mining regime enshrined in Part XI of the UNCLOS. He deemed the regime to be unfavourable to US interests, as it was not entirely based on free-market principles, in that it provided for technology transfer obligations benefitting developing countries and conferred considerable powers regarding the allocation of resource rights upon a central international agency, the International Seabed Authority (ISA). The US and other industrialized nations continued their opposition to Part XI beyond March 1983, and were successful in advocating for a renegotiation of the respective provisions of the UNCLOS. In July 1994, the US eventually joined several other states in signing an international agreement on the implementation of Part XI, which diminished the powers of the ISA and based Seabed mining on market-principles consistent with WTO rules. Despite these developments, and the UNCLOS being one of the most universal international treaties with 168 contracting parties, the US has still not ratified the UNCLOS. However, the US largely recognizes the Convention as customary international law.

By Sara Birkenthal I zoom into the pixelated image of a neighborhood in Bayanoun, a district located in the Northern district of Syria, northwest of Aleppo. Deep in my investigation, I repeatedly watch a video of destruction of this town by airstrikes and use online research tools to attempt to geolocate and verify the video. In the process, I am transported to war-torn Syria. In reality, however, I am safely ensconced in Berkeley, California, at Berkeley Law School’s new Human Rights Investigations Lab. The Berkeley Human Rights Investigations Lab Berkeley’s Human Rights Investigations Lab, the world’s first university-based open source investigations lab, launched last semester. Through a partnership with Amnesty International, The Berkeley Lab seeks to bring attention to human rights abuses through human rights reports and journalistic projects. It also seeks to gather evidence of genocide, crimes against humanity, and war crimes for future prosecutions. The Berkeley Lab is training students to join the Digital Verification Corps by teaching them how to verify hundreds of hours of video footage and photographs of human rights abuses and war crimes from around the world – including Syria, Darfur, and Yemen. Students are also using open source methods to gather evidence of genocide, crimes against humanity, and war crimes for national and international criminal courts. These open source investigators access this information through software, data sets, and tools, as well as legal processes, such as Freedom of Information Act requests. What is open source investigation? The work of The Berkeley Lab is in high demand. Human rights investigations increasingly rely on open source intelligence – information obtained from social media and other sources, including YouTube – to chronicle and verify violations of international human rights or humanitarian law. For example, recently the NGO Bellingcat used exclusively open source evidence to document Russian participation in the shooting down of Malaysia Airlines Flight 17 over Ukraine. Benefits and Challenges The Lab, and similar open source investigations labs established at the University of Essex and University of Pretoria have a number of other benefits: they were created with minimal startup costs and draw on the diverse expertise of these universities’ faculty and students. Notably, since the Berkeley Lab opened its doors last semester, more than 100 students from across the university have joined. The open source movement has opened the door to students who might not have otherwise undertake human rights research, bringing new perspectives and talents to the table. However, the open source movement is not without its individual and macro-level challenges. One of the biggest challenges for open source investigators themselves is verification of media that they find online or that they receive. Bellingcat’s founder, Eliot Higgins, a Research Fellow at the Berkeley Human Rights Center, has explained the importance of geolocation to verify that an image is what it’s claimed to be. Geolocation is the process of using photos and videos to find the precise location – ideally, down to the latitude and longitude coordinates – of what happened. The geolocation process can often take hours for a short clip, and can involve combing Google Maps and other online resources for landmarks that stand out amongst the rubble. Once an investigator can make a connection between a neighborhood where he or she suspects an event has taken place and a landmark in that neighborhood, he or she can go about attempting to confirm the coordinates of the location. However, the investigation process is inherently uncertain; an investigator often finds multiple landmarks in a neighborhood that could be the site of an event. Investigators learn the importance of pursuing numerous avenues and not allow bias to lead them to conclude that something is a certainty, when, in fact, it is merely a possibility. On a macro level, while the open source movement seems promising, the current reality is that the question of whether the open source data will be used as evidence in future tribunals is still an open one. Open source evidence remains largely untested in international tribunals due to the uncertain evidentiary status of open source materials. A recent example from the International Criminal Court (ICC) illustrates the uncertainty of the future of open source evidence. The ICC indicted former Congolese Vice President Bamba for murder, rape, pillaging, and  bribery. The prosecution submitted evidence showing a wire transfer from Bamba’s sister to a witness, who allegedly passed the money to another witness, who in turn purportedly gave false testimony. The prosecution also submitted Facebook pictures reportedly showing the two corrupt witnesses together. In response, the defense disputed whether these images had probative value, as required by the court’s governing law, the Rome Statute, and its Rules of Procedure and Evidence. According to the defense, it was impossible to know who posted the videos, when and where they were taken, who took them, and if the people in them are who the prosecution claims they are. Further, the defense found problematic the means by which the prosecution obtained the photos: extracting them from Facebook. Because the prosecution does not have access to metadata – such as the IP address of the uploader or the time stamp – there is no way to determine who posted the photos. To date, it remains to be seen how the ICC will come down on this issue. The court’s flexible evidentiary standard, which does not designate categories of inadmissible evidence, but rather establishes a paradigm for analysis of evidence, makes it hard to predict how the court will rule on the prosecution’s submission. This lack of clarity has the effect of disincentivizing investigators and parties from utilizing open source evidence. If parties submitting open source evidence – much of which is new to the court – cannot rely on a particular determination from the court as to the admissibility of that evidence, they will be less likely to submit such evidence. Accordingly, in its place, investigators and parties will continue to depend upon traditional methods of investigation, which can be time-consuming and costly in terms of the burdens undertaken by witnesses, many of whom risk their lives to testify against powerful individuals whose resources may exceed the operating budget of the tribunal. Even recognizing that under the court’s current flexible evidentiary standard, it will likely admit the photos in the Bamba case, and similar open source evidence, the opportunity cost in time spent waiting for the court to render a decision on its admissibility nevertheless slows proceedings by a court widely criticized for being inefficient. Though the use of open source evidence in investigations certainly has its challenges, given the widespread adoption of Internet-connected mobile devices and social media, failing to use open source methods to research and verify human rights abuses and war crimes is an enormous missed opportunity. International courts, such as the ICC and other tribunals, should encourage the use of open source evidence by replacing the current general standard with one specially-tailored for open source evidence. Like traditional types of evidence, open source evidence should not be assessed in a vacuum; instead, according to the court’s admissibility test, open source evidence admissibility should be determined as part of the evaluation of probative value, taking into account relevance and prejudicial effect. Further, an evidentiary standard for open source evidence should safeguard open source evidence from tampering, tainting, and corruption. Importantly, an open source standard should differ from the existing general evidentiary standard in that the current standard bars UN or NGO reports that do not provide sufficient detail about their sources; an effective open source standard would have to be more lenient to take into account the fact that open source evidence, by its very nature, is often anonymous. According to this approach, open source evidence could be admitted even when its origins are unknown, but the weight afforded to the evidence may vary. Considering the advantageous nature of open source evidence to the ICC and other tribunals, investigators should have an easily-accessible framework to evaluate open source evidence. While the importance of an evidentiary standard for open source evidence is clear, little progress has been made thus far to develop and implement one. As open source evidence inevitability proliferates in the years to come, a tailored standard will become increasingly critical, and lack thereof will become increasingly grave for international courts and the victims they are intended to protect.

By: Maribeth Hunsinger Western Sahara is a disputed territory in the Maghreb region of North Africa, bordering Morocco, Algeria, and Mauritania. It boasts phosphate and iron reserves, and is believed to have offshore oil deposits. Spain colonized the territory in 1884 and exercised control for over one hundred years, until Morocco wrested de facto control over large parts of the territory. Some, however, still see Western Sahara as “Africa’s last colony,” with the Kingdom of Morocco exercising colonial power over the native Sahrawi people. No member states of the United Nations (UN) have recognized Moroccan sovereignty. While there remains political support for Morocco’s claim in the West, many countries are increasingly recognizing the legitimacy of the independence claims by the Sahrawi Arab Democratic Republic (SADR). This piece explores the basis for these respective claims, and in particular the proposition that self-determination in Western Sahara should not serve to decide between “competing sovereignties” but to allow the Sahrawi people to decide whether to retain their sovereignty. The Roots of the Conflict Spain colonized Western Sahara, and its control over the territory lasted well into 20th Century. In 1965, the UN General Assembly passed its first resolution on the matter, calling for Spain to decolonize the territory. The General Assembly followed this with seven more resolutions between 1966 and 1973, all of which called for a referendum on self-determination. Self-determination, a core principle of customary international law, refers to the legal right of people to determine their legal status in the international system. A referendum on self-determination would call upon the people of Western Sahara to determine their own political future, whether that be independence or integration with another state (i.e., Morocco). Spain announced its plans to hold a referendum in early 1975, opening the door to potential Sahrawi independence. However, King Hassan II of Morocco countered that Morocco would not accept a referendum that included the option of independence. Morocco had expressed its claim to the territory since 1957, and proposed submitting the matter for arbitration by the International Court of Justice (ICJ) to determine the legal status of the territory. Interpreting the ICJ Opinion of 1975 The ICJ acknowledged legal ties between the territory and Morocco in a vote of fourteen to two, and legal ties between the territory and Mauritania in a vote of fifteen to one. However, with regard to these ties, the ICJ held in its Advisory Opinion that “the court has not found legal ties of such a nature as might affect…the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.” The dominant construal of the ICJ opinion is that Western Sahara is entitled to a referendum for self-determination. However, the reference to the “peoples of the Territory” could be further construed in two different ways: as either a mandate for the territory’s current occupants to determine which competing state has sovereignty over the territory, or as a mandate for the SADR to determine how it wishes to proceed with the territorial sovereignty it already possesses. Some academics, however, argue there is clear Sahrawi sovereignty based on the ICJ opinion. This interpretation rests on a less frequently cited part of the ICJ opinion: “[t]he purpose of a self-determination referendum in Western Sahara is not to decide between competing sovereigns…but to poll the Sahrawis as to whether or not they wish to retain, modify, or divest their sovereignty.” This language does seem to indicate ICJ recognition that the native Sahrawis were legal occupants of the territory prior to Spanish colonization, and that self-determination refers to the will of the Sahrawis. Pursuing a Referendum of Self-Determination However, although the ICJ opinion prompted Spain’s withdrawal from Western Sahara, the question of territorial sovereignty persisted. Morocco instigated the “Green March” in which 350,000 unarmed civilians crossed from Morocco to lay claim to the territory. Spain, Morocco, and Mauritania signed the Madrid Accords in 1975 to formally end Spanish presence in the territory. The agreement divided the territory between Morocco and Mauritania. The Polisario Front, a Sahrawi liberation movement, set up the SADR as a government-in-exile in the refugee camps of Algeria. In response to this movement, Morocco and Mauritania went to war with the Polisario over the issue of Sahrawi independence. Mauritania withdrew from the territory in 1979, leaving Morocco in de facto control over two-thirds of the territory and the SADR in de facto control over the remainder. In 1988, the UN submitted settlement proposals to Morocco and the Polisario, with the intent of finally coordinating the referendum on self-determination in Western Sahara. These proposals offered that people of contemporary Western Sahara a choice between integration with Morocco or independence. However, the parties unsurprisingly disagreed over the identification of voters for the referendum, creating an impasse. Morocco offered a solution in which the SADR could exercise autonomy under Moroccan sovereignty, but the Polisario rejected this. Even the UN Security Council was unable to agree on a path forward. In the past decade, the UN has effectively abandoned attempts to organize a referendum for West Saharan self-determination, and has instead encouraged the main parties to the contemporary conflict (Morocco, Algeria, and the Polisario Front) to engage in regional negotiations. By December 2015, Christopher Ross, the UN Secretary-General’s Personal Envoy, declared the negotiation process “stalemated.” Contemporary Recognition of Sovereign Claims Despite Morocco’s physical control over the majority of the territory, the SADR has continued to increase its recognition within the international community. The SADR achieved accession to the Organization of African Unity (OAU), which later became the African Union (AU), in 1984. Such recognition has traditionally been considered an attribute of statehood, even if it does not necessarily establish its territorial claims. That same year, Morocco withdrew from the OAU, maintaining that admission of Western Sahara into the OAU was a violation of the OAU charter because Western Sahara had neither international recognition nor sovereignty. Nevertheless, Morocco requested to rejoin the AU in 2016, and was readmitted in early 2017 after a thirty-three-year hiatus. Although Morocco has not explicitly accepted an independent Western Sahara, the AU allowed Morocco’s readmission on the basis that Western Sahara will remain a member of the AU. Some states, including Algeria and South Africa, wanted acceptance of Sahrawi independence to be a condition for Morocco’s readmission, but there is no specific provision in the AU charter that could have been leveraged to accomplish this. Moreover, following King Mohammed VI’s “charm offensive” to attain readmission to the AU, twenty-eight member states were reported to have signed a motion for the suspension of the SADR from the AU. Looking Forward Morocco’s return to the AU “threatens to create [an] unprecedented split within the membership of the Union.” However, some AU delegates think it will be easier to resolve the issues between Morocco and Western Sahara now that both are AU members. Morocco remains deeply tied to, and enjoys substantial political support for, its sovereign claim to Western Sahara. Moroccan stability is also a strategic priority for Western countries such as France and the United States, and Western Saharan nationalism can be seen as a threat to that stability. Nevertheless, the ICJ opinion of 1975, and the increasing political recognition of the SADR, weigh strongly in favor of the Sahrawi right to self-determination over the future of sovereignty in Western Sahara.

By Alfredo Diaz On February 10, 2009, the first accidental hypervelocity collision between two intact artificial satellites in low Earth orbit occurred when Iridum 33, a 1,234 pound satellite, and Kosmos-2251, a 1,984 pound satellite, collided as they passed over northern Siberia at an altitude of 490 miles, traveling at around 26,170 miles per hour, producing almost 2,000 pieces of debris larger than 4 inches in diameter, and more than 200,000 smaller pieces. A 0.5 mm paint chip traveling at 35,000 km/hr (10km/sec) could puncture a standard space suit; a one-centimeter fragment could damage a space station. According to the 1972 Liability Convention, liability for these fragments depends on the Launching State and whether damage occurred in orbit. If the object causes damage to the surface of Earth or and aircraft in flight, a strict liability standard applies—a state is considered strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside of its control. If the space object causes damage some place other than the surface of Earth, a fault standard is applied. How this all plays out, we do not truly know. The Liability Convention has also never been formally invoked—all incidents to date that could have resulted in potential claims under the Convention, including the Iridium-Cosmos collision, have been settled by the respective countries outside of the Convention. Still, someone will have to clean all of this up— international space law deems fragments and components from space objects as individual space objects in and of themselves, requiring identification to determine the owner and either individual or blanket consent to remove it from orbit, as there is no right of salvage analogous to the right in maritime law.