Search Results

About the Author: Kopal Mital is a fourth-year BA-LLB (Hons.) student at National Law School of India University, Bangalore. Image by SalFalko available here. In March 2022, the Company Law Committee (the “Committee”) released its report recommending changes to the Companies Act, 2013. A bill which will be brought before the Indian Parliament in the winter session will likely include these changes. Proposals introducing fractional shares and changing provisions that govern the role of auditors have dominated the discussion. However, the proposal to ease capital raising requirements for distressed companies is also significant and merits deeper discussion. This article analyzes the Committee’s proposal, and I argue that before this proposal becomes law, it must clarify the manner in which this policy operates. To that end, this piece proposes a series of recommendations and safeguards to address the practical issues of this proposal to ensure smoother implementation. Summary of the Committee’s Proposal The proposal’s intention stems from COVID-19’s impact on many businesses. According to a survey conducted by the Federation of Indian Chambers of Commerce & Industry, COVID-19 impacted 50% of companies' operations and 80% of companies reported cash flow losses. Recognizing that companies were experiencing difficulties in raising new capital, the Committee proposed enabling certain distressed companies working in public interest to sell their shares to the federal and state governments at a price below nominal value. Nominal value is the value maintained as an entry in a company’s accounting books. The proposal defined “distressed companies” as those facing a cash loss for the last three successive years. The proposal seeks to carve out an exception to the rule established under section 53 of Companies Act, 2013, which prohibits companies from selling their shares below nominal value. The rule also prescribes criminal penalties, including fines and imprisonment, to punish violations. Legalizing Bailout in India Businesses and society are mutually dependent. Businesses produce goods and services and generate employment for society. Therefore, this injection of capital into businesses as a bailout is a welcome move. While “bailout” has many definitions, its common interpretation is government payments to certain “liquidity constrained private agents.” Equity investment is one form of bailout that the Committee proposed. In cases where private agents need liquidity immediately and cannot afford to take on the additional obligations of repaying interest and principal amounts that come with taking a loan, equity investment is more desirable. Given that COVID-19 impacted many companies’ cash flows, many businesses are cash strapped and unable to make the repayments. Therefore, equity purchases have been proposed. Governments are well positioned to purchase equity from struggling businesses because they are equipped with the resources and ability to mobilize them. However, taxpayers’ money finances these bailouts. Therefore, bailouts must be well-thought out. Since governments bail out companies using taxpayer money, efficient use of resources is of paramount importance. To ensure the optimum use of resources, implementation details are key. An effective manner of designing implementation details could be to institute checks and balances at every stage of the bailout. The Committee’s proposal does not flesh out the details. The report notes that further terms and conditions would be mentioned in the rules that would be drafted by the federal government. Therefore, there is a lack of clarity about the modalities of implementation. If enacted, this proposal would effectively legalize government bailout, making it even more crucial that the proposal contain concrete implementation details. Stages of Bailout Bailouts have three stages: pre-investment, investment, and disinvestment. The third stage is important because bailouts should be short-term, as the government’s primary function is not to run businesses. Only extreme circumstances warrant government intervention to ensure businesses do not collapse altogether. After the government recovers its investment, it must disinvest. Stage 1: Strict and Clearly Defined Eligibility Criteria The current proposal outlines two criteria. First, only companies that have faced a cash loss consistently for the last three years would be eligible. Cash loss can be indicative of fraud and mismanagement. However, given the impact of COVID-19 and lockdown restrictions, cash loss could be the result of the drop in demand and supply of goods. Companies would still need to maintain their production facilities and pay their workers. Therefore, this measure accounts for the COVID-19 induced impact of the macroeconomic factors on businesses. Second, the company must work in public interest. Given the breadth of this category, it will provide the government with the flexibility to invest in a wide range of companies. While these aspects are important, the government should consider additional factors when deciding to invest in a company. First, the government should only invest in solvent companies that are currently facing a cash crunch. Keeping in mind the limited resources, it is important that the government assists those firms which can return to making profits. “Zombie firms” or firms that have dim prospects of recovery should be avoided. Second, the government should ensure that the company’s management is financially disciplined. This is essential to reduce the likelihood of the management misusing the investment funds. Therefore, the government must carry out due diligence and review the financial statements of the company. Third, there should be minimal political interference in the allocation process. Privileging political consideration may lead to inefficiencies and waste of limited resources. For optimal use of resources, the funds should go to companies that are projected to recover and grow. To this end, the government must avoid conflicts of interest and make appropriate interest disclosures. Further, the arm’s length principle should be followed, meaning that transactions with related parties should be carried out as if they were unrelated. Stage 2: Accountability Mechanisms During the Course of Investment An important lesson learnt from past bailouts is that oversight is necessary. In the absence of oversight mechanisms, there would be high agency costs. The proposal offers two mechanisms. First, the government should be a part of the management by having a seat on the board of directors. If that is not possible, then they must be observers. Both are effective ways of exercising control over the management. These mechanisms should be supplemented with period performance reviews and examinations of audited financials to ensure the judicious use of the investment. Second, the funding allocation should be done in rounds. This would allow the government to learn from the mistakes of the previous round. This would also allow the government to understand the right level of intervention. An escrow mechanism could also be adopted, whereby the funds would only be credited if the parties have fulfilled certain predetermined obligations. Stage 3: Disinvestment As highlighted before, the government’s intervention should be temporary. By making the assistance long-term, there is a risk of accumulating “dead capital,” which creates pressure on the national economy. To avoid such a situation, there should be a clear exit plan. The government should withdraw when certain predetermined objective goals of profit and growth are met. An alternative to this could be that the government disinvests after a fixed period of time. To ensure further accountability, a condition could be that if the government is unable to recover its initial investment after the investment term expires, the difference in funds would be paid back by the directors of the company. Conclusion Given that the Committee’s recommendations may become law, it is important to ensure that the nuances of implementation are deliberated. If this proposal becomes law, its impact will not be limited to the aftermath of COVID-19. Therefore, the bill should be designed in a way that accounts for the long-term impact of legalizing the bailout. By instituting multiple checks and balances at every stage, the bailout will hopefully be more targeted and therefore, more effective. The author would like to thank Mr. Rajesh Arora (Head of Finance, Al Hilal Bank, Abu Dhabi) for his insights.

About the Authors: Jeevan Justin and Sidharth Pattnaik are 5th Year B.A., LL.B. (Hons.) and B.B.A., LL.B. (Hons.) students respectively at National Law University Odisha. They are interested in International Human Rights Law and Transitional Justice. Image by Arun Anoop available here. The fight for the dignity and fundamental rights of the Dalits persists. The Dalits are people belonging to the lowest caste in the Indian caste system, and they face the most oppression. Among the Dalits, caste has fostered and maintained poverty and deprivation, caused by historical injustice and justified by socio-religious traditions. The injustice has sparked many movements that sought to protect and enforce the dignity of the Dalits. These movements have resulted in the fundamental rights of this community being enshrined in the Constitution. However, while this community’s fundamental rights are enshrined in the Indian Constitution and the International Human Rights Conventions, there is great difficulty in enforcing these rights. Not only are domestic enforcement mechanisms failing, but international mechanisms also have limited effect. As such, Dalit rights movements continue, still fighting for dignity and justice. These enforcement failures maintain the oppressive hierarchy by limiting the number of avenues that challengers of the hierarchy can pursue. What are the causes of these failures? The failure of the domestic mechanisms can be attributed to the fact that the maintenance of the caste system is advantageous to the social, economic, and political interests of those in power. When domestic mechanisms fail, one turns to international law to seek help. However, there seems to be no help forthcoming from that quarter. The failure of the international human rights mechanisms can broadly be attributed to the supremacy of state sovereignty over human rights enforcement and the failure of existing top-down enforcement mechanisms. This is compounded by India’s reluctance to cooperate adequately with the institutions tasked with enforcing International Human Rights Law (IHRL). A poignant example of this reluctance is India’s stance during the 2001 World Racism Conference. India adamantly diverted attempts of international interference in caste issues, arguing that caste-based discrimination does not fall within the ambit of the Convention on Elimination of Racial Discrimination. What recourse, then, do Dalit rights movements have? We believe the answer lies in wielding IHRL as a weapon to help the local social movements for equality and justice. In this article, we lay out how anti-caste movements in India can access and benefit from IHRL and its institutions in the first section. In the second section, we discuss how these movements can access IHRL through “translators.” In the last section, we discuss the role of law schools in enabling such access and benefits. Will the invocation of IHRL be useful at all? The perceived inaccessibility of international human rights mechanisms acts as a barrier to using them as tools and sources of support for social movements. However, accessing these institutions and adopting IHRL hold distinct advantages for such movements, increasing both political opportunities and resource flow. At the international level, there are several bodies set up to monitor and ensure States’ compliance with IHRL. By framing local injustice as violations of international human rights law, local movements can access these bodies through mechanisms such as the UNHRC Complaints Procedure. These bodies can then be urged to address injustices or, at the very least, “name and shame” the violating States. Such framing and subsequent attempts to obtain redress can add to such movements' perceived legitimacy and effectiveness. Further, there has been an increase in the number of international fora where activists and social movement organizations can interact. Such interactions help develop individual and organizational networks through which material resources, movement strategies, and useful information spread, which leads to the creation of a transnational network of allies who can help leverage various tools to force governments into compliance. Hearteningly, studies have found that the mere ratification of human rights treaties by states raised the status of human rights principles, allowing civil society actors to leverage treaties to force governments to address their human rights violations. In other words, social movements can function as de facto enforcement mechanisms to improve local practices. How can local social movements use IHRL? The integration of IHRL and language within social movements happens through the process of vernacularization. Essentially, the human rights concepts that have been formulated by international human rights bodies are adopted by local actors in ways that are effective in their local contexts. As can be seen from the work of Sally Merry, this has been particularly prominent in the movements for women’s rights. For instance, an NGO in India implemented women’s rights principles by paying poor women to make kites that warned against sex selection policies, and by encouraging them to join other women’s groups to protest the relocation of slum dwellers after a flood. In other words, the implementation of international human rights obligations in local contexts is fought for, and sometimes achieved, through vernacularization. Dalit movements can adopt similar strategies, perhaps by enforcing the principles of dignity and non-discrimination in local social practices. An additional element to consider is the identity of those engaged in vernacularization. Merry calls them “translators,” and they perform a key function; human rights spread more effectively and with greater legitimacy if they are adopted to local culture and systems of law. However, Merry contemplates transnational actors who can, and do, move among different geographical spaces, and may not be indigenous to the struggle they are currently participating in. Their loyalties are suspect, sometimes tied more to funding and opportunities for wealth and power. In the Indian context, this is visible in the NGO sector and those engaged in voluntary work, as this field is dominated by privileged castes. In contrast, we contemplate a particular kind of individual who functions as a translator. This individual would belong to the people he is fighting for and would be someone who has overcome great hurdles to gain the knowledge and capital required to operate in transnational legal spaces. From Merry’s work, it becomes clear that, to qualify as a translator, the person in question must have knowledge of international and national human rights law and possess the ability and capital required to access international human rights fora, along with the obvious willingness to ally oneself with and work for a social movement. In other words, the particular kind of translator required is a “legal scholactivist,” who becomes an actor within both the international and national legal fields. Therefore, the success of such a scholactivist depends on the dynamics of the international legal field itself and the ability to assimilate within a global cosmopolitan class, which in turn requires the acquisition of symbolic capital. One of the ways in which such symbolic capital and access can be acquired is through legal education. This is exemplified by Cynthia Farid’s case study of Kamal Hossain. Hossain earned the opportunity to study in the United States and in Oxford by being an exceptionally meritorious student. Later in life, he was able to leverage the network of colleagues he had formed through his English bar qualification and Oxford education to help with the struggle for international recognition for Bangladesh and his own international law practice. However, it must be kept in mind that Hossain belonged to an elite family in Bangladesh, which made his journey much easier. What role do universities play? In India, such access and capital is acquired by studying at the country's elite law schools. However, mere entry is not sufficient because those from the lower castes only form a small minority at these institutions and face discrimination and lack of institutional support, making it more difficult for them to thrive. Therefore, the elite law schools must provide institutional support to such students through special programs and take stringent steps to dispel the discriminatory atmosphere completely. Secondly, all universities have social responsibility, and have historically been sites for the construction and dissemination of new aesthetics, beliefs, and codes of conduct. With respect to the human rights discourse, it is not sufficient for universities simply to be facilitators (engaging in teaching and as a site of research, usually distant from the real world). Universities, particularly law schools, must consider themselves actors, with the power to educate, address, protest, and bring change in the light of human rights violations. Such a transformation requires not only a change in attitude, but also in curriculum and pedagogy. Teachers must strive to educate students not merely on dry legal theory, but also on the broader challenges facing their nation and most importantly, teach critical thinking. The results of this endeavor must not be evaluated in terms of form, but also in effect. In contrast to the prevailing trend, more students must be inspired to try to ally themselves with efforts for social changes, rather than joining the prevailing rush for corporate placements. It is a common belief that one cannot do good and earn a livelihood, but it must gradually be dispelled. Conclusion When these changes are realized within elite law schools, we will see the emergence of new scholactivists, who have the potential to change the flawed, unjust and unequal social fabric of the nation. In the current state of the world, there are few tools as powerful as human rights language that local social movements can use. What is required is a lasting social change. New networks, political opportunities, and resources will undoubtedly be useful in the quest for such a change. This battle will be neither short nor easy. However, once those bearing the brunt of the oppression are empowered to fight for themselves, with all the weapons they can acquire, the tide will surely turn.

About the Author: Esha Goyal is a fourth year law student at the National Law School of India University, Bangalore, India. Image by Jurnej Furman available here. Russia started gathering troops along the Ukrainian border early this year. By February 23, the situation had grown so tense that the European Union (the EU) imposed sanctions against all members of the Russian parliament and cut Russia off from European financial markets. The United States (the US) followed suit a day later. By February 25, the EU started freezing assets of important state officials, and these freezes grew increasingly intense as Russia finally attacked Ukraine. While the global sanctions against Russia and certain Russian individuals, like the oligarchs, stand on a firm moral ground, they may lack foundation in the current international law framework. The sanctions imposed thus far are unilateral; the UN Security Council motion failed. Further, the sanctions have extraterritorial effects and are imposed by states which are not directly injured by the Russian invasion. In the absence of a multilateral treaty on these issues, the conditions as well as the severity of sanctions seem to be based primarily in the domestic legislation of the sanctioning countries, raising the concerns about sovereignty, nonintervention, and the rights of the individuals affected. Sanctions under International Law The power of states to freeze assets – of individuals and other states – is a subset of the general power to impose sanctions. Article 39 of the United Nations Charter (the UN Charter or Charter) allows the Security Council to make a determination regarding an act of aggression by a state party and allows it to decide on the measures to be taken. Article 41 enumerates several measures that the Security Council may adopt to maintain international peace and security in the event of a breach of the Charter, including sanctions. The word “sanctions” is not defined anywhere in the UN Charter or any other legally binding international instrument. However, various scholars have defined a sanction as an imposition of costs in response to a perceived breach of international law which aims to coerce the target into changing its behavior and complying with the principles of international law. Although there is no hard limit on the extent of sanctions, sanctioning states must ensure that they follow the principle of non intervention and do not impose an excessive pressure that impinges on the autonomy of the state in the field of its domaine réservé. Thus, the power to impose sanctions is not unfettered but limited by customary international law and the Charter itself under Articles 24(2) and 25. Once sanctions are prescribed by the Security Council, they are necessarily binding on all member states. However, in the present case, since Russia is a permanent member of the UN Security Council, it used its powers to veto the resolution. Thus, even though 11 out of the 15 members voted in favor of ending Russian military activity, the proposition was defeated. Since Russia being the aggressor in the given case rendered the Security Council effectively powerless, the powers of general sanction given in the UN Charter also fail. Thus, it becomes necessary to determine whether states may take unilateral action, and to what extent would unilateral sanctions, including freezing the assets of foreigners, be permissible under international law. Legality of Extraterritorial Unilateral Sanctions on Russia in the Form of Freezing Assets There are two forms of unilateral action – retorsion and countermeasures. Retorsion refers to imposing unilateral sanctions which may be unfriendly but are not unlawful, inasmuch as the state is not violating any international obligation. Countermeasures on the other hand, are acts by a state that may be prima facie unlawful, but can be justified if they are in response to the breach of international law by the target state. The majority of the acts taken against Russia fall under the latter category. However, there is uncertainty in international jurisprudence about the criteria governing unilateral sanctions because such sanctions are not treaty based. Sanctions may also be multilateral – in the sense that a group of states act in concert – with the most prominent example being the EU. However, these would also include sanctions imposed pursuant to recommendations by the UN General Assembly, like in the present case where the General Assembly passed a resolution condemning Russia’s actions. Nevertheless, this does not exempt states from observing the principle of non-intervention since the collective act gains force only from the underlying legitimacy of the acts of individual states. Sovereignty and Extraterritorial Application Even if freezing the assets of the target state is justified, the freezing of private assets of foreign officials and citizens might not be. Nevertheless, it is common under international law to freeze all assets if individuals bear some responsibility for the state’s breach of international law, as was done in the case of several Russian oligarchs. Thus, there is uncertainty about their legality, justification and extraterritorial applicability, which needs to be resolved on a case by case basis. Many individual asset freezes are governed by the domestic legislation of the sanctioning country rather than international law. Targeted sanctions against identified individuals of another state, as in the case of asset freezes, also involve piercing the state veil to go beyond the State to holding individuals responsible for state action. This raises questions about the remedies available to the targeted persons. Since the courts of the affected individual’s home country would not have any authority in this matter, the affected individuals would have to approach the courts of the sanctioning state. In most cases, the courts of the sanctioning state would decide in favor of the asset freeze because the sanctioning state’s legislation would leave standards vague, or to the discretion of the government. Extraterritorial application is also a contested issue because dollar outcasting and denial of access to foreign markets are measures that few, economically powerful states can take. This impinges on sovereign equality of states under international law. For instance, the Swiss policy on the issue states that assets may be frozen if there is rampant corruption in the source country or if assets were acquired by unlawful means. Further, the burden is on the targeted individual to prove that assets are validly acquired and should be unblocked. Other countries like the US and UK use even wider language and often fail to state the source of their power to freeze assets, instead merely relying on vague terms like “global security” and “international peace.” This casts doubt on the validity of such sanctions. On the other hand, some countries like Australia give specific reasons for enforcing autonomous sanctions, citing the “Russian threat to the sovereignty and territorial integrity of Ukraine,” which makes them legitimate countermeasures under international law instead of potentially illegitimate use of power. Entitlement of Non-Injured States Another significant issue is the legal entitlement of non-injured states to resort to countermeasures. In the present case, only Ukraine is the directly affected jurisdiction, all other sanctioning states are third parties. The Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) allows non-injured states to impose sanctions in collective interest, for having suffered an injury as a member of a group or as a member of the international community as a whole. This idea of collective self-defense is included in Article 51 of the UN Charter as well. However, Article 48 of ARSIWA only envisages requests for cessation and guarantees for non-repetition, not countermeasures in the form of sanctions, further raising doubt on the validity of freezing assets of Russian Banks and citizens. Confiscation and freezing of assets owned by another state also raises questions of sovereignty, and state policy, to the extent sanctions are being rolled out against Russia, is also sparse. However, some authors on the subject believe that the present circumstances and their implications for all of Eastern Europe and China might warrant the creation of a new exception to state sovereignty to justify unilateral freezing of assets by the international community. Even assuming that freezing Russian assets and other sanctions were legal and justified, Article 50 of ARSIWA states that sanctioning states continue to have human rights obligations. As such, the impact of asset freezes on the Russian population must be closely monitored not just as a matter of general prudence but also international law. There is concern that freezing Russian Bank assets and cutting it off from the world banking system would effectively not allow the country to access its resources of foreign exchange, potentially sparking a financial crisis into the country which can form the background for severe human rights violations. Thus, the economic sanctions and asset freezes may be tenuously valid on grounds of international peace, despite not complying with the UN Charter, ARSIWA, or Russian sovereignty. However, the effects of such asset freezes on targeted individuals as well as the Russian population are potentially severe, to the effect that it may detract from the binding force of these sanctions. Conclusion Apart from the legitimacy and legality of sanctions, another important consideration is their efficacy. It is a well-established fact that while sanctions may pressurize or destabilize democratic leaders, they have little to no effect on one-party and authoritarian systems. Since the essence of sanctions is to stigmatize and pressurize a state into compliance, sanctions will not work with states like Russia which have strong nationalistic beliefs and believe that Western sanctions are illegitimate. In such cases, non-compliance becomes a political act of resistance. Because the West is already treading on thin ice by having to unilaterally impose sanctions instead of proceeding through the Security Council, it is even more important for these sanctions to be legal, valid, and legitimate. Presently, most of the sanctions seem to be operating on a global consensus against Russia, instead of being grounded in customary practice or other sources of international law. This should change if the sanctions are to have continued moral force.

About the author: Nayomi Goonesekere holds an LLM in International Law from the George Washington University Law School as a Thomas Buergenthal Scholar. She served as Associate Legal Officer (2020-2021) and Judicial Fellow (2019-2020) at the International Court of Justice. Image by UN Women Gallery available here. Deadlock in the United Nations Security Council (the Security Council or Council) due to the veto power of its five permanent members obstructs the ability of the United Nations (the UN) to effectively address atrocity crimes. The procedural failures of the Security Council have led to the escalation of crisis situations around the world. In this context, this article will analyze the background of the veto and the composition of the Council, proposals for veto restraint in the case of atrocity crimes, and an inclusive path forward. Role of the Security Council Under the United Nations Charter (the Charter), the Security Council holds primary responsibility for the maintenance of international peace and security. In furtherance of this responsibility, the Council wields a binding decision-making power recognized by all member States under Article 25 of the Charter. Under Chapter VI of the Charter, the Council can make recommendations for resolving conflicts by various peaceful means. It may also take a range of enforcement measures including sanctions and military force under Chapter VII of the Charter. That the Council is the only UN organ with the power to make binding decisions is of particular importance when resolving deadlocks. The veto power At the heart of the deadlock issue lies Article 27, paragraph 3 of the Charter, which is often called the veto power of the permanent members. Article 27, paragraph 3, states that all matters of the Security Council pertaining to non-procedural matters must be made by “an affirmative vote of nine members including the concurring vote of the permanent member.” A “concurring vote” means an affirmative vote or an abstention. Therefore, a draft resolution on non-procedural matters that has the support of nine or more non-permanent members can be vetoed by a single negative vote by a permanent member. The five permanent members thus have the ability to cast a veto and prevent the adoption of any resolution. Composition of the Security Council, bias, and the need for review As per Article 23 of the Charter, the Security Council is a 15-member Council composed of five permanent seats and ten rotating non-permanent seats. The Charter affords the veto power to only the five permanent members: the United States, Russia, France, the United Kingdom, and China. This power was the sine qua non for the participation of the most powerful States in the United Nations. In 1963, the General Assembly recognized the problematic membership structure of the Council which permitted the abuse of the veto to the detriment of international peace and security, and recommended an increase in membership from 11 to 15. It also suggested a pattern for representation in non-permanent membership as follows: (a) five from African and Asian States; (b) one from Eastern European States; (c) two from Latin American States; and (d) two from Western European and other States. The amendments recommended in A/RES/1991(XVIII) are largely reflected in the language of Article 23 of the Charter. Despite the changes, the permanent five continue to dominate the Council’s agenda. Both Article 23, paragraph 1 of the Charter and Rule 143 of the Rules of Procedure of the General Assembly in dealing with the election of non-permanent members provides for the equitable geographic representation almost as an afterthought. The 1963 recommendations have failed to prevent the propagation of particular State interest. As a result, few non-permanent members currently support the veto power. Recent deadlocks and how they impair the effective functioning of the United Nations Russia’s February 2022 veto on the Albania-United States draft resolution calling for a cease-fire in Ukraine once again spurred discussion on deadlocks. The resolution inter alia requested that Russia immediately cease its use of force against Ukraine and withdraw all military forces. It also called for unhindered access to humanitarian assistance for vulnerable persons and children. The draft, which garnered the support of 11 members and abstention by three, was not adopted. Fears have also arisen about the increase in the use of the veto. Since the beginning of the uprising in Syria in 2011, Russia has used its veto power 17 times to block the UN’s efforts to prevent the crisis from escalating catastrophically. In 2016, Russia vetoed a Franco-Spanish resolution that demanded a halt to airstrikes in Aleppo and access to humanitarian aid. Russian vetoes have also prevented the adoption of a resolution commemorating the twentieth anniversary of the Srebrenica genocide and the establishment of an international criminal tribunal to prosecute those responsible for the downing of Malaysian Airlines Flight MH17. Proposals for reform Following the February 2022 Russian veto relating to Ukraine, the General Assembly adopted A/RES/76/262. It provides that the members would gather “within 10 working days of the casting of a veto by one or more permanent members of the Security Council, to hold a debate on the situation as to which the veto was cast.” This resolution only serves to bring an element of scrutiny to the use of the veto but does not require swift action. The October 2013 French initiative proposed a voluntary pledge where the permanent members would voluntarily and collectively pledge not to use the veto in cases of recognized mass atrocity crimes. To trigger this code of conduct, the Secretary General would have to make a determination as to the occurrence of a mass crime at the request of at least fifty member States. The Accountability, Coherence and Transparency Group (ACT) initiative in July 2015 proposed a code of conduct for the Security Council, by calling for both elected and permanent members to not vote against “credible” draft resolutions intended to prevent or halt the commission of mass atrocities, including the use of the veto power. This code lacks a procedural trigger, as it merely requests that the Secretary General bring situations or facts on the ground to the Security Council’s attention by using the UN system’s early warning capacities. The February 2015 Elders proposal provided that the permanent five must not use the veto in crises where mass atrocities are committed or threatened without explaining their decision by publicly proposing an alternative plan to protect the populations in question in accordance with international law. While this proposal also contains no procedural trigger, the Secretary General would play a role in the Security Council’s decisions. Publicly proposing an alternative plan in the presence of the Secretary General would help to ensure that the permanent-five do their utmost to find common ground. The Secretary General, as a third party, is also well placed to scrutinize the credibility of the alternate plan. Signing onto either the ACT code or the Elders proposal does not constitute an obligation under international law. The Uniting for Peace Resolution (General Assembly Resolution 377(V)) presents another avenue to circumvent the use of the veto. It grants the General Assembly subsidiary responsibility where the Council has failed to exercise its primary responsibility for the maintenance of international peace and security due to lack of unanimity of the permanent members. It may be invoked in any case where there appears to be a threat to the peace, breach of the peace, or an act of aggression. However, it does not carry any binding legal weight. Way forward For a proposal calling the Security Council to adopt criteria to restrain its members from using their veto power to succeed, the provisions of the Charter would have to be amended. This is a difficult task. Articles 108 and 109 of the Charter grant the permanent-five veto over any proposed Charter amendments. Therefore, it is unlikely that a permanent member would approve of a proposal where they would be called to relinquish their powers. Even though calls for Russia’s exclusion from the Security Council and sanctions have grown louder, this is a practical impossibility because Russia is well within its rights to veto any resolution to that effect or to even veto the curtailment of its powers within the Council. The challenges in the existing proposals for Council reform – procedural triggers and measures such as pledges and General Assembly Resolutions that have no binding effect – must be dealt with. To prevent the propagation of particular State interest, the Security Council should adopt a resolution that prohibits permanent members from exercising their veto power in cases of mass atrocities resulting from genocide, war crimes and crimes against humanity. The Secretary General can determine the existence of such circumstances on a need basis. Resolutions adopted by the Security Council acting under Chapter VII of the Charter are considered binding. The Security Council should be reformed further by enlarging its membership, both permanent and non-permanent. The permanent-five should include three more developing countries, and the Council of 15 should be expanded to 19 where members are enabled to make substantive decisions by majority. The Security Council’s failure to address mass atrocities around the world stems from its continued and unfettered use of the veto as well as the ability to use it. The inclusive path forward proposed here is a political solution. Greater representation within the Council will bring about a much needed change to the status quo. Radical changes to membership of this nature could potentially bring in a new era of decision making where the permanent members would make greater efforts to agree on an effective course of action in the event that one or more members feel obliged to cast a veto. Such a political solution may be the only viable way forward considering the absolute discretion granted to the Council with respect to the veto under the UN Charter. Whether States that enjoy discretion would be agreeable to such change remains a question mark.

About the authors: Yatharth Kansal and Mainak Mukherjee are fourth-year law students at National Law University and Judicial Academy, Assam (India). Image by bmnnetwork available here. I. INTRODUCTION Optimism of India and China’s relations returning to normalcy ebbed as the Indian Government, under Section 69A of the Information Technology Act, 2000 (IT Act), banned 54 more Chinese apps deemed security threats. The move comes as part of India’s recent stern policy of banning Chinese apps to protect its security interests after border skirmishes with China in the Galwan Valley in 2020. While China has criticized the ban, India expects the ban to secure its sensitive data, which the Chinese apps have been accused of collecting by obtaining various permissions. Nevertheless, India must adhere to its World Trade Organization (WTO) obligations and ensure that the ban is justifiable. In this article, the authors will analyze how India is justified in banning Chinese apps in view of WTO rules and regulations. II. THE NATIONAL INTELLIGENCE LAW OF CHINA: The Main Security Threat India banned Chinese apps to safeguard national security, as numerous Chinese apps were collecting sensitive data from Indian users and transferring that data to Chinese servers. This conduct was against the “sovereignty and integrity of India, defense of India, security of state and public order.” Moreover, the Chinese intelligence service could access all this data under the National Intelligence Law of China, 2017 (NILC), which authorizes Chinese corporations to share collected data with their government. Further, Article 7 of NILC mandates Chinese corporations to assist and cooperate with state intelligence work. Similarly, Article 14, which works as a backbone for Article 7, gives the Chinese government absolute authority to gather all the information collected by companies based in China. Other nations have accused Chinese companies of misusing sensitive data in the past. Recently, the United States imposed a ban on Huawei, a Chinese multinational corporation, for allegedly sharing sensitive data with the Chinese intelligence agency. Similarly, the Chinese company Tik-Tok has been accused of collecting “biometric data” of all its users. However, the main problem is not data collection, but how easily the Chinese intelligence agency can access and misuse this data via the NILC. III. THE MFN OBLIGATION: How is the WTO concerned? One of the main agendas of the WTO is to combat protectionism and liberalize the national trade policies of all its member States. The “Most Favored Nation” (MFN) provision of the General Agreement on Trade in Services (GATS), prohibits any discrimination by a member state towards a like service rendered by other member states. However, member states have the leeway to adopt trade-restrictive measures if they justify the measures under the “essential security exception.” Similarly, under Article XVI (Market Access Commitment) of the GATS, member states may undertake specific commitments to treat foreign and domestic products equally. In US-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, the WTO Appellate Body held that a member may not contravene a specific commitment once it is undertaken. However, India has not taken any specific commitment in the digital service sector. Therefore, it can avoid an examination of its actions. IV. THE WTO Impasse: The Self-Judging Security Exceptions Security exceptions have lain dormant in the General Agreement on Tariffs and Trade, 1994 (GATT) upon the creation of the WTO and its subsequent agreements (i.e., Article 73 TRIPS and Article XIV bis GATS). Application of this defense dates back to the Falkland-Malvinas case, where it was observed that members have an inherent right to adopt measures to protect essential security interests. Similarly, in the backdrop of the Angola Crisis in 1961, Ghana justified its boycott of Portuguese goods by arguing that the goods posed a potential detriment to security. In both scenarios, the member states were able to evade a GATT examination because of the self-judging nature of the provision. The definitive ruling came in the dispute Russia–Measures Concerning Traffic in Transit (DS512) (Russia Transit), in which the Panel, while evaluating Russia’s restrictions on traffic in transit from Ukraine through the Russian federation to third countries during the Crimean crisis, rejected Russia’s argument on the non-justiciability nature of the security exception clause. The Panel further held that a state must satisfy three parameters to invoke the security exceptions defense. First, the state must satisfy one of the requirements of the sub-paragraph of the Security Exceptions. Second, the measures must reasonably fall within the ambit of vital security interest. Third, the measures must be taken in good faith with a rational and plausible relationship between the measures and the end pursued. The Panel’s observation in Russia-Transit has been considered to be highly persuasive and has played a significant role in the Panel’s findings in the Saudi-Protection of IPRs dispute. Similarly, India can justify its ban by satisfying the three requirements of the security exceptions defense. a. The ban must satisfy one of the requirements of the sub-paragraph of the Security Exceptions. The Chinese app ban satisfies Article XIV bis (b)(iii): “taken in time of war or other emergency in international relations.” The Indian and Chinese troops were engaged in a border confrontation in the Galwan Valley, which resulted in the death of 20 Indian soldiers. The Galwan standoff can qualify as a “war or other emergency in international relations” as it resulted in a military action from both sides. After the Galwan conflict, India is in a situation where it cannot take any risk of allowing any threat from China to its sovereignty. Moreover, the Galwan Valley standoff looked like a well-planned move from China, which could not have been executed without collecting information about the whereabouts of the Indian soldiers. This information could have been accessed with the help of the Chinese applications which the soldiers used on their electronic devices. b. The measures reasonably fall within the ambit of vital security interest. The ban on Chinese apps was imposed under Section 69A of the IT Act read with IT Rules, 2009, which empowers the Indian Government to block public access of applications that can threaten its security interests. Further, India can justify its ban under the security exception clause of the GATS, which contains the phrases “it considers” and “necessary.” The Panel in the Russia-Transit case adopted a balanced approach by interpreting the phrases as mentioned above, both objectively and subjectively, which meant that the invoking member had the discretion to determine what constitutes its essential security interest; however, such action was subject to review by the Dispute Settlement Body (DSB) to determine if it was “necessary.” The International Court of Justice (ICJ) adopted a similar approach in its Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo. It held that a legal question could have both political and legal aspects. Similarly, the ICJ in the Mutual Assistance case held that even if such clauses are “self-judging,” the requested state must act reasonably and in “good faith.” Therefore, India can argue that the ban is essential for its security interest because the Chinese apps collect and store crucial and sensitive data of its users. This data can be easily accessed by the Chinese intelligence service under the NILC. Moreover, due to the self-judging nature of the security exception clause, India has the right to determine what is essential for its security interest. c. The measures must be taken in good faith with a rational and plausible relationship between the measures and the end pursued. The obligation of good faith is a “customary international law” that underlies all treaties. It is codified under Articles 31(1) and 26 of the Vienna Convention on the Law of Treaties (VCLT), which mandates the interpretation and performance of every treaty in good faith. After the Galwan Valley incident, India suspected that China’s military escalation was planned on the basis of data collected by the Chinese apps. India could have retaliated in the form of military force, or could have cut-off diplomatic ties with China. However, they acted in good faith by choosing a less lethal method: targeting the Chinese economy by banning their apps from the Indian market. Self-judging clauses can circumvent the multilateral trading system because member states can adopt trade-restrictive protectionist measures under the guise of national security. Thus, good faith must apply to both the member state’s interpretation of the sub-paragraph of the Security Exceptions, as well as the connection between the member’s action and its security interests. Therefore, the measures “must meet a minimum standard of plausibility” supporting the allegedly affected essential security interests. In this technology driven era, apps have previously been accused of collecting sensitive government security information. For example, the US banned Strava for storing heatmap data that could reveal military sites. Similarly, Chinese apps like Tik-Tok and UC Browser have been accused of collecting sensitive data from their users. Further, data collected by Chinese apps from different sources, be it civilians, diplomats, or military, can easily be accessed and misused by Chinese agencies. Thus, the ban protects the data of the country as a whole from being misused and to the detriment of the nation. This satisfies the requirement that the measure has a plausible relationship with the pursued end. V. CONCLUSION India’s long border dispute with China looks far from over. At a time when data is considered to be the new oil, India continues cracking down and taking stern actions toward Chinese apps to prevent Chinese entities from misusing the data of the people of India. This shows that India is not currently ready to compromise data protection while having a border dispute. Moreover, the security exception clause of GATS gives a member state the freedom to implement measures that it considers necessary for the protection of its essential security interest. Although the self-judging nature of the clause allows floodgates to open for its abuse, India’s ban is justified because it can satisfy the Russia-Transit parameters. Further, under any circumstances, India’s territorial integrity falls within the purview of its essential security interest. Therefore, any action taken by the government for the protection of its territorial integrity is cogent and justified.

About the author: Ahan Gadkari serves as a Research Assistant under Dr. Aniruddha Rajput, Member, UN International Law Commission. On March 12, 2021, the UN Open-Ended Working Group (OEWG) adopted a final report reaffirming the widely held belief that international law (IL) encompasses cyberspace. Several countries have expressed this belief in proposals requesting that the OEWG address cybersecurity issues. (See here, here, here and here). Therefore, the academic debate surrounding cyberspace can shift towards determining the scope of IL. The Oxford Process and Tallinn Manual 2.0 are two of the most noteworthy initiatives to make headway in this space. The OEWG report advocated for a set of "voluntary, non-binding norms" based on recommendations from member states. Critically, the report concluded that these norms would operate in conjunction with the states’ obligations under IL. This conclusion refutes the argument that these new norms would supplant a state's responsibilities under IL. However, the OEWG stated this conclusion more explicitly in the pre-draft report before tempering it in the final report. Nonetheless, the final report challenges two mutually reinforcing assumptions about the scope of IL's applicability in cyberspace. First, IL concepts can be applied to cyberspace only if opinio juris demonstrates their application, that is, states must believe they are obligated to apply IL concepts to cyberspace issues. Second, new cybersecurity norms render existing principles of IL inapplicable to cyberspace because cyberspace is a distinct area of IL. If we accept these two assumptions, then we effectively place cyberspace issues outside the reach of existing IL. However, an analysis of International Court of Justice (ICJ) opinions, International Law Commission (ILC) draft articles, and nations’ OEWG deliberations show that these assumptions are incorrect. Therefore, existing IL is the foundation for future developments in international cyberspace law, such as the new norms promulgated in the OEWG report. The assumption requiring Opinio Juris: The assumption that opinio juris is necessary rests on the premise that distinct spheres demand distinct state practices. Israel's Deputy Attorney General argued in support of this assumption that IL cannot be applied automatically from the physical to the cyber sphere. From a purely physical standpoint, he is correct; certain principles of IL are restricted to specific spheres. For example, the idea of freedom of navigation is restricted to ships operating on the high seas. However, he overlooked the fact that the cybersphere is not merely another physical sphere. This notion that IL will be applied differently in different areas originated in the law of armed conflict, where nations have varying commitments in various spheres. The primary argument for doubting IL's applicability in cyberspace is the assumption that cyberspace is a new frontier. This is incorrect, as cyberspace activities do not take place in a new sphere. Rather, what we commonly refer to as cyberspace is a collection of information and communication technologies that enable users to more efficiently exchange and process information, such as the internet. Moreover, while software, code, and data are significant components of these technologies, the components themselves require hardware and individuals who create and use software, hardware, and data. Thus, while cyberspace activities span borders, they are nonetheless rooted in physical infrastructure. In its Advisory Opinion on Nuclear Weapons, the ICJ rejected the contention that principles of IL and international humanitarian law do not apply to nuclear weapons because they are a new form of weaponry. Additionally, the ICJ noted that the principles of IL apply to all weapons, regardless of when they came into existence. Additionally, the ILC stated that every new technology is subject to existing principles of IL aimed at preventing transboundary harm. Further, the OEWG report underlined that the issue is technology misuse, not technology use, and that actions to avoid technology misuse should remain “technology-neutral.” The term technology-neutral means that existing principles must apply to new forms of technology, without simply refuting their application based on the “new form of technology” argument. This is not to say that no adjustments are necessary when extending IL principles to cyberspace; they may be required in some cases. What this does mean is that the starting point for IL in cyberspace is not limbo but rather established principles of IL. This becomes increasingly critical, as the Czech Republic recognized, because cyberspace use accelerates at a rate that treaty development cannot keep up with. The assumption that the new norms will replace the existing principles of IL: The 2015 Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (GGE), which the United Nations General Assembly subsequently adopted, urged the establishment of new norms of responsible state behavior in cyberspace. As indicated at the outset of this piece, the GGE intended for these new standards to be voluntary and non-binding. Thus, what is the relationship between these new standards and established IL principles? One of these new standards requires states to prevent their territory from being used for cyber operations that violate IL. However, this requirement already exists as a general principle of IL: due diligence. Is this to say that a fundamental principle of IL has been reduced to non-binding advice under the new norms? The proponents of this assumption may desire to suggest that states have opted to dilute some IL principles in cyberspace. However, during the OEWG deliberations, states made clear that the new norms do not replace or alter their existing obligations, but rather complement them (See here, here, here and here). Additionally, the OEWG report noted that the new standards do not supplant existing legal concepts, but rather complement them. In the case of established norms of IL, states have maintained that the long precedent of states enforcing these norms further validates their application to cyberspace. (See here, here and here). Conclusion: Existing principles of IL continue to govern the sphere of cyberspace. Accepted principles remain in force until states decide to change them. Thus, while new cyberspace-related norms and treaties are undoubtedly necessary, this need does not render existing obligations inapplicable. The OEWG's final report and states’ recommendations imply that the new norms complement current IL principles, whether they admit it or not.

About the authors: Priankita Das and Garima Khanna are fourth-year law students at Dr. Ram Manohar Lohiya National Law University, India. Image by K-putt available here: I. INTRODUCTION The unexplored bounds of outer space present many opportunities for ambitious and rapidly progressing space-faring nations and private entities to make their mark in outer space. However, the legal doctrine is still being developed and is not consistent with the transition from exploration to exploitation. This blog questions whether space-faring nations will ever successfully exploit resources in outer space and if they do, who gets to possess the legal ownership over them. The current Conventions are clouded by ambiguity on the issues of appropriation of resources extracted from the moon and other celestial bodies, but with ambitious non-governmental organizations laying down stepping stones for development in outer space, it is essential to clear the air pertaining to these complex matters. At a cursory glance, it may seem like these resources shall be acquired on a first-come-first-serve basis, but the consequence of that approach is deep-rooted in issues arising out of ignorance of basic customary international law. The most pressing concern is that the rights of developing nations might be overlooked, as their resources to reach outer space remain limited due to technological or economical incapability. An unequal allocation of resources may lead to territorial conflicts defeating the object and purpose of the Space Conventions for peaceful use of outer space. II. PRINCIPLE OF NON-APPROPRIATION IN SPACE LAW One of the most fundamental principles of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (hereinafter “Outer Space Treaty”) and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter “Moon Agreement”) is the principle of non-appropriation, which essentially means that no object can become the property of any state or citizen. This principle aims to guarantee peace among state parties and prevent any occurrences of private disputes arising out of proprietary rights over the lunar surface. Its purpose is not to prohibit the use of lunar resources, but rather to provide free access to all state parties on a non-discriminatory basis. This indicates that the drafters of the Outer Space Treaty acknowledge the perks of giving access to mankind for purposes of exploring the unexplored bounds of space and simultaneously were aware of the colossal harm that could be brought to extra-terrestrial matter present on celestial bodies. Both the Outer Space Treaty and the Moon Agreement have provisions enforcing this specific principle. The non-appropriation principle creates certain obstacles for private entities that seek to gain monetary profits out of moon mining; however, there do exist certain loopholes that can be used by private commercial entities in order to circumvent this principle without the violation of any provision of international or domestic law. III. RESTRICTION OF NATIONAL APPROPRIATION OF THE LUNAR RESOURCES The Outer Space Treaty [Article II] and Moon Agreement [Article 11(2)] state that the surface of the moon or any part thereof shall not be subject to ‘national appropriation’ by a claim of sovereignty, means of use and occupation, or by any other means. It is pertinent to note that the provisions only prohibit ‘national’ appropriation and are silent on the subject of appropriation by private entities. However, Article VI of the Outer Space Treaty categorically states that any activity conducted by a non-governmental entity in outer space shall come under the purview of the State’s jurisdiction and the State shall be responsible for the actions of the organization. Furthermore, Responsibility of States for Internationally Wrongful Acts also recognizes any person or entity as Organs of State under Article IV. Similarly, in 2004, the International Institute of Space Law (hereinafter “IISL”) stated that territorial claims, whether by a national or private entity, are prohibited by the Outer Space Treaty. The IISL drew this conclusion from Article VI of the Outer Space Treaty, which states that the responsibility of any and all activities, including activities by non-governmental entities, shall be of the State parties. Therefore, by an extension of this provision, the non-appropriation principle is binding upon private commercial players as well, and thus, they cannot appropriate the resources available on the lunar surface. IV. APPROPRIATION OF LUNAR RESOURCES ‘IN PLACE’ Despite the extended application of the non-appropriation principle on private entities, there exists another loophole in the Moon Agreement that may be utilized to circumvent the non-appropriation principle. Article 11(3) of the Moon Agreement states that no proprietary rights can be created over any natural resources ‘in place’ and that the placement of any structures, vehicles, or personnel over the surface of the moon shall not give rise to the right of ownership. Emphasis must be supplied to the term ‘in place’ or in situ, which implies that the prohibition on the creation of property resources is inapplicable to the resources which have been extracted from the surface of the moon. Any resources which are ‘out-of-place’, i.e., removed from the surface by the personnel or equipment, are not under the protection of the Moon Agreement or Outer Space Treaty. Therefore, if any mining company, whether private or governmental, intends to extract and take over the ownership of lunar resources, it would not be in violation of international space law. The United States of America has also based its domestic space mining legislation on this interpretation of the Conventions. Moreover, with the application of the nulla poena sine lege principle, i.e., one cannot be punished for doing something that is not prohibited by law, it implicitly allows private entities to appropriate resources available on the lunar surface. Thus, private commercial entities have a way out of compliance with the non-appropriation principle of the Outer Space Treaty and Moon Agreement. However, such allowance for private entities would defeat the very purpose of the Outer Space Treaty and the non-appropriation principle. V. CONCLUSION Despite the noble attempt of the Outer Space Treaty and Moon Agreement to proscribe the creation of proprietary rights in outer space, the drafters of the Conventions failed to take into account the loophole provided by the wording of Article 11(3) of the Moon Agreement that allows such creation over resources ‘in place’ or in situ. This loophole may allow private players and government entities to misuse the freedom allowed by international space law and go forward in placing private and sovereign claims over lunar resources to the detriment of other private and national entities. Such circumvention will result in the absolute defeat of the res communis principle, i.e., the common heritage of mankind, that is fundamental to international space law. Thus, it is recommended that State Members take note of this loophole at the earliest, and accordingly devise a solution that would eliminate the misuse of this provision.

About the author: Shantanu Singh is a third-year B.A. LL.B. (Hons.) student at Dharmashastra National Law University, Jabalpur. Photo available here. Recently, the International Criminal Court (ICC) decided to reopen a probe into potential war crimes committed in Afghanistan. The alleged perpetrators include not only terrorist groups - the Taliban and the Islamic State Khorasan (ISIS-K), but also the US Forces and its allies. However, the ICC’s ambit of investigation explicitly excludes the alleged crimes of the US and its allies, limiting the investigation to the actions of Taliban and ISIS-K. This decision has triggered criticism from human rights defenders who have questioned the moral standing of the court and described the exclusion of powerful states as extremely dangerous that feeds impunity for all. Against this backdrop, this article anatomizes the wider issue of persisting inequalities rooted in international criminal justice. It outlines the importance of the third world approaches to international law (TWAIL) in the context of international criminal law and exposes the Eurocentric and hegemonic foundations of international criminal justice. It attempts to accentuate how the institutions of international criminal law systematically perpetrate marginalization of the Global South to the benefit of the Global North. It offers a thorough inspection of the ideological and structural biases that exist in international criminal law from its inception and persist today. Eurocentrism and the Development of International Criminal Law One of the defining characteristics of the ICC is that it proclaims to exercise universal jurisdiction in its aim to prosecute, regardless of the place of commission and nationality of the suspect, “the most serious crimes of concern to the international community as a whole.” The concept of universality is based on observance of geopolitical egalitarianism and objectivity in the enforcement of international criminal law. However, from the TWAIL perspective, the pragmatic reality of this idealistic claim is highly contested. The exercise of universal jurisdiction is rather regarded as a reflection of power asymmetries in the international legal order. As history depicts, the European colonial powers used international law as an instrument to justify and legitimize the subjugation of the Third World in the hands of the European colonial powers. An essential feature of Europe’s colonial framework was incessant interference in the affairs of the Third World, rationalized based on the concept of “civilizing mission” i.e., by characterizing non-Europeans as “other” – primitive, barbarian and uncivilized – who must be civilized and developed. For instance, the British imperialist project to interfere in the native princely states of India was rationalized by calling them ‘semi-civilized’, “semi-sovereign” and “protected dependent states.” Consequently, the states that surrendered their sovereignty and became subsidiary to the British Raj were certified as “civilized states.” Similarly, during the Philippine-American War (1899-1913), Rudyard Kipling's “The White Man’s Burden” supported for the the US to join forces with British imperialism and share the “white man’s burden” of “extending civilization to peoples considered inca-pable of governing themselves.” From the TWAIL perspective, international criminal law has been a “distinctly Western venture” owing to a strong and unstated influence exercised by the colonial conceptions of the primitive and the barbarian. It is frequently the “other” who are perceived to be the source of all violence and who must consequently be subdued by even more intense violence. Nevertheless, violence administered by a colonial power is always legitimized by characterizing it as of humanitarian or self-defense nature. International criminal justice furthers the occidentalist narrative of them being the saviours of the “dark corners of the world” and of “teaching these darkies about the rule of law” by “imposing white man’s justice upon third world conflicts.” In the light of the Eurocentric foundations of international law, Anghie and Chimni argue that the purported universality in respect of international criminal law is demonstrated to result more so in selectivity than egalitarianism. The interpretive prism of TWAIL encompasses colonial and neo-colonial ordeals lived by the people of the Third World due to the colonial architecture of international law. The crystallization of international criminal law at Nuremberg was an exposition of global power politics, selectively covering the atrocities committed by Nazis while passing over Allies’ conduct as colonial powers. A similar and even more flagrant exposition transpired in the Tokyo Trial, where the Tribunal feared that allowing Japanese defendants to take a defense of tu quoque could enmesh Allies for their war crimes. In his 1,235-page dissent, Judge Radhabinod Pal held that all the defendants were innocent since the London Charter was an ex post facto law. Thus, both the Nuremberg and Tokyo trials are archetypes of victor’s justice wherein the tribunals were heavily dominated by the US influence. The establishment of country-specific ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), and the Special Court of Sierra Leone (SCSL) exhibits a drive towards selective prosecution of weak regimes in the Third World. Despite concerted efforts to push for action on allegations against the British forces in Iraq, Canada’s treatment of Afghan detainees, or the alleged crimes of Western allies in Israel and Colombia, the ICC’s prosecutorial lens remains affixed on the Global South, particularly Africa. Problematizing (Post-) Colonial Continuities The ICC was established in 1998 with a promise to transform the international criminal justice project by addressing the downsides of ad hoc criminal tribunals. Numerous TWAIL Scholars, albeit critical of its certain aspects, expressed optimism for the ICC in light of its consensually negotiated statute, unlike its predecessors. Countries of the Global South ratified the Rome Statute for it promised an institution that appeared “genuinely egalitarian in structure and profoundly fair in conception.” Nevertheless, the structural and material design of modern international criminal law is still a replication of traditional exclusions. For instance, Article 17 of the Rome Statute is inherently imperialist as it reinforces the civilizing mission of the West and enables the ICC to conduct prosecution by deeming the legal systems of the Third World as ineffective and inappropriate. It is premised on the “existence and perpetuation of state failure and weakness” and is oblivious to the “culpability of Global North for the role of State failure.” This framework of fortifying legal hegemony of the Global North is strongly condemned by TWAIL scholarship for displaying (post-) colonial continuities that legitimize the creation of arbitrary grounds for unsolicited intervention in the Third World states. Furthermore, Article 98 grants de facto immunity to the Western powers from prosecution of the ICC as it allows two states to conclude a bilateral non-surrender agreement that impedes the ICC’s jurisdiction. These agreements have effectively created evasive routes for the Western powers to conclude several such agreements by issuing threats to withhold military or development aid. For instance, the US has concluded such agreements with over one hundred states, thereby preventing the appearance before the ICC of any US national. This lawlessness of the Western states effectively renders the ICC as an instrument in the hands of the Western powers to maintain their hegemonic status quo. The referral mechanism of the Security Council under Article 13(b) of the Rome Statute is another blatant portrayal of the ICC’s reluctance to dissociate itself from the imbalance of power of international criminal law in the favor of the West. The Security Council’s referral powers imperiously alter the principles of international law by allowing unsolicited intervention of the ICC over matters transpiring on the territory of a non-party state. For instance, the ICC exercised jurisdiction to indict Sudanese President Omar al-Bashir for alleged genocide in Darfur. The Security Council’s referral powers position even non-signatories of the Rome Statute (the US, China and Russia) to veto any referral of cases to the ICC, thus further entrenching the inferior treatment of the Third World by the international criminal law. The referral power of the Security Council is criticized for departing from the pacta tertiis rule embodied in Article 14 of the Vienna Convention on the Law of Treaties as per which a treaty does not create rights or obligations for a state without its consent. Apart from the ICC’s geographical selectivity, its “material selectivity” ensures that international criminal law is anything but universally applicable. The forms of violence criminalized at the design level are indicative of deeply rooted historical forms of inequality. International law’s approach to determining what constitutes the “most serious international crimes” has never been a neutral process. This is evident from historical patterns of opposition from Global North states to the inclusion of crimes such as apartheid, colonial domination, foreign intervention and severe environmental damage for fear that their nationals and corporations would be exposed to prosecution. TWAIL aims to re-conceptualize and redefine these boundaries of criminalization by creating an inclusive list that encompasses crimes of neocolonial character such as mercenarism, corruption, money-laundering, illicit exploitation of natural resources, etc. Conclusion From a TWAIL perspective, the ICC’s journey hitherto has been restricted by geographical and material selectivity to the detriment of the Third World for it continues the evil legacy of ad hoc tribunals by “imposing white man’s justice upon third world conflicts.” An expedition towards prosecution of all the perpetrators of war crimes in Afghanistan, and contemporary crimes of colonization in Palestine and Sri Lanka would provide the ICC with a meaningful opportunity to prove its emancipatory potential and legitimacy. The ICC ought to extricate modern international criminal law from the clutches of eurocentrism by navigating a more holistic approach to resolving conflicts, aimed at recognizing and understanding the very dynamics that originated the eruption of violence.

About the author: Rhia Mehta (LL.M Candidate, Class of 2022) is a contributor to Travaux. Introduction Global news outlets are rife with evidence of Russia committing atrocities in Bucha, Ukraine. Photo-journalism has reported the shooting of a man walking alongside his father, who in bearing witness to the murder of his son wished for the bullet to have aimed for him instead; the decaying body of a gunned grandmother, continuing to be protected by her dog; the body of an unidentified woman raped and lying naked in a potato cellar; and the body of a son lying on the sidewalk, shot while he sneaked out to get a loaf of bread from some neighbours. Ukrainian President Volodymyr Zelensky narrated these allegations in detail during the United Nations General Assembly’s (UNGA) emergency session on April 7, 2022, which led to the UN body voting in favor of Russia’s suspension from the United Nations Human Rights Council (UNHRC). The UNHRC was created in 2006 with the adoption of Resolution 60/251. The UNHRC has 47 members, serving for a period of 3 years, elected by the majority of the UNGA through direct and secret ballot. The UNHRC demands that “..with membership on the Council comes a responsibility to uphold high human rights standards.” Therefore, the UNGA is obligated, in the exercise of its electoral powers, to consider the candidate States’ involvement in the protection and upliftment of human rights. The Russian Federation was elected to the UNHRC on January 1, 2021, with the expiry of its term in 2023. However, on April 7, 2022 its term was cut short by a 93 members majority voting in favor of its ouster. Russia’s suspension was sought in compliance with Article 8 of Resolution 60/251, which allows for the suspension of a State’s right to membership of the UNHRC, by a two-thirds majority of the members present and voting when the concerned State “commits gross and systematic violations of human rights.” The United States’ envoy to the UN, Linda Thomas Greenfeild, made the case for its dismissal In anticipation of the vote, Ukrainian Ambassador Sergiy Kyslytsya implored the UNGA caucus to support the resolution, especially in the recent light of the massacre of hundreds of civilians in the Ukrainian town of Bucha. Emphasis was laid on the murder, torture, rape, kidnapping and robbery of “peaceful residents” by the “Russian Army”. Kyslytsya petitioned that a vote against the resolution would mean “pulling a trigger, and it means a red dot on the screen, red as the blood of the innocent lives lost.” Similarly, the US urged Russia’s suspension calling its participation in a body protecting human rights a “farce” in light of its recent brutalities. Russia’s Violation of International Law The allegations of Russia’s violation of international law are two-pronged. First, the crime of aggression, perpetuated by Russia’s wilful infringement of Ukraine’s territorial integrity. Second, Russia’s violation of the laws of armed conflict. Article 2.4 of the UN Charter requires that all Member States “refrain . . . from the threat or use of force against the territorial integrity or political independence of any state . . . ” The requirement to adhere to this rule by Member States is absolute, with only two exceptions specifically carved out. The first is when the Member State is acting in self-defense. Russia may purport to justify its invasion under Article 51 of the UN Charter, which provides that a Member State’s inherent right of individual self-defense shall not be impaired if it is under an armed attack by another State. However, this is not a claim Russia can sustain. Russia was not under an armed attack from Ukraine to have acted in self-defense. The second exception is when, under Chapter VII of the UN Charter, the United Nations Security Council (UNSC) authorizes the use of force. This was also not the case in the present scenario. Russia’s military intervention is further alleged to have violated the laws of armed conflict. These laws were confirmed through the adoption of the Geneva Conventions, requiring signatories to abide by established rules of conflict, essentially encompassing principles enshrined under international humanitarian law. Specifically, the law unyieldingly restricts Member States from targeting civilians during armed conflict. Not only is there an absolute prohibition on attacking a territory distinctly populated with civilians, but also on attacks aimed at territories where a clear distinction between the occupation of combatants and civilians cannot be easily identified. Attacks in violation of such prohibitions are recognized as war crimes. Legal Recourse Available to Ukraine Notably, Russia’s acts of aggression come in the face of the International Court of Justice’s (ICJ) order on provisional measures, dated March 16, 2022, in the matter of Ukraine v. Russian Federation (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide). Russia did not participate in the oral proceedings. The proceedings were filed by Ukraine seeking the rightful interpretation of the Genocide Convention. Particularly, Ukraine sought to negate Russia’s allegations that Ukraine had authorized the genocide of Russians in the Ukrainian territories of Luhansk and Donetsk. And further that such alleged genocide by Ukraine triggered Russia’s right to take unilateral military action in Ukraine. In its order, the ICJ ruled in favor of Ukraine, inter alia directing that Russia immediately suspend all military operations that it commenced on February 24, 2022 on Ukrainian soil. Ukraine may also consider holding Russia accountable for its actions before the International Criminal Court (ICC). The ICC only has direct jurisdiction over States that have acceded to the Rome Statute, which is the statute of the Court. The ICC therefore cannot exercise direct jurisdiction over Russia, but it can exercise its jurisdiction over the crimes Russia has committed within Ukrainian territory. Since Ukraine has accepted the ICC’s jurisdiction, the Court can direct investigation into the crimes committed on its land. Further, it is notable that the ICC holds jurisdiction over individuals and does not specifically focus on the States. As such, Ukraine may consider arraying the Russian President Vladimir Putin as a party-Defendant. Effectively, to hold Putin directly responsible, the ICC will have to test his role in the Russian invasion against the concept of ‘command responsibility’, which requires assessing whether or not the alleged individual, whether in his military or civilian capacity, exercised effective control over the acts alleged in conflict, even though he may not have been the one directly committing the acts. Conclusion Despite such prosecutions, the fact remains that the UN bodies, both the ICJ and ICC do not have much power to enforce the execution of their orders. As such, the enforcement of any verdict against Russia and/or Putin will have to be achieved through the powerful harmonious culmination of global political powers, all collectively fighting the war against human brutalities, just as they did in suspending Russia from the UNHRC. It will take the sacrifice of personal political agendas and of favorable diplomatic relations for a unanimous global political will to ensure culpability and the prevalence of justice.

About the author: Lin Wei (LL.M Candidate, Class of 2022) is a contributor to Travaux. Her interests focus on international trade and international commercial arbitration. Lin holds an LL.B. degree from the Southwest University of Political Science and Law and is pursuing a master’s degree in international law from the East China University of Political Science and Law. She is a native speaker of Mandarin. "Who really pays for all this CO2? Understanding the incidence of carbon taxation in the EU" available here. Introduction On July 14, 2021, the European Commission adopted and published a proposal for a Carbon Border Adjustment Mechanism (CBAM), which some media reports refer to as a “carbon border tax.” The EU Commission claims CBAM will be a “global solution” that solves climate change as a “global problem.” It will impose a carbon price on selective imports. CBAM aims to minimize “carbon leakage” from the EU to countries with less emissions constraints by aligning the carbon price to be paid on imports into the EU with the price paid under the EU’s Emission Trading System (ETS) for carbon emissions produced within the EU. The EU has committed to become the first climate-neutral continent by 2050. The CBAM proposal forms part of its target of reducing carbon emissions 55% by 2030. The EU shows courage in introducing this climate policy employing trade measures that has not yet been tried elsewhere. However, there are concerns about the potentially trade-restrictive effects of this legislation and its compliance with WTO rules. Context: the 2015 Paris Agreement and “Carbon Leakage” The 2015 Paris Agreement leaves contracting parties to choose their own level of climate goals as nationally-determined contributions (NDCs) that reflect their “highest possible ambition,” and “common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.” This has resulted in asymmetric climate mitigation policies among different countries. Moreover, the Paris Agreement does not provide any enforcement mechanism that would ensure states keep their commitments. As a result, industries might relocate their power plants, factories, or other heavily polluting facilities to countries with less stringent emission constraints when the EU ETS or other similar carbon pricing rules raise their costs, which could increase their total emissions. To ensure that this trend of “carbon leakage” does not undermine the EU's climate objectives and drive away foreign investments (not explicitly claimed by the EU), the EU introduced CBAM. As discussed previously, CBAM is a unilateral measure that charges certain products imported from non-EU countries on the basis of their carbon emissions in the production process. It requires importers to buy carbon certificates corresponding to the carbon price that would have been paid had the goods been produced under the EU's carbon pricing rules. The price of the certificates will be calculated depending on the weekly average auction price of EU ETS allowances expressed in € / ton of CO2 emitted. However, certain third countries who participate in the ETS or have an emission trading system linked to the EU's will be excluded from the mechanism. These include members of the European Economic Area and Switzerland. The EU will revisit the exemptions in 2030 when the “trading partners should have put in place the decarboni[z]ation measures they have committed to, and an emissions trading system equivalent to the EU's.” Debates under WTO Rules: Discriminatory Trade Restriction? The EU stated that it has considered and ensured CBAM's WTO compatibility during the drafting stage but without any detailed legal analysis. As a response, some countries like Canada and the US are considering similar proposals. However, BASIC countries (Brazil, South Africa, India, and China) have expressed “grave concerns” regarding the usage of unilateral carbon border adjustment. It argues that these trade barriers are discriminatory and violate the principles of Equity and the UN principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). To analyze the legal compliance of CBAM, the first step is categorizing it under the General Agreement on Tariffs and Trade (GATT). There are debates on whether the charge imposed via CBAM falls within the concept of “ordinary customs duties” and “other duties or charges” under GATT Article II:1. It provides that a member is bound to impose a certain maximum of tariffs and is barred from charging a value in excess of ordinary custom duties or any other fees mentioned in its schedule of concessions. CBAM charges on imported goods, but on the basis of these items’ Processes or Production Methods (PPMs) instead of value or volume. These fees may not constitute ordinary duties, but can still be designated as “other duties or charges.” With regards to the non-discriminatory principle under the GATT, the Most Favored Nation (MFN) clause requires the contracting parties to grant the same advantages, favors, privileges, and immunities to all like products originating in or destined for the territories of all other contracting parties (non-discrimination amongst foreign products), and the National Treatment (NT) clause requires contracting parties provide national treatment on internal taxation and regulation to imports from other contracting parties (non-discrimination against foreign products). It is possible that CBAM could violate the MFN principle if it exempts imports from certain countries with equivalent carbon pricing systems. It could also violate the NT rule because imported goods do not benefit from the same free allowance that is granted to local producers. The last core question is whether discrimination either against MFN or NT obligations can be justified under GATT Article XX as a general exception. Articles XX(b) and (g) are the exceptions relevant to the climate issue. Article XX(b) deals with such measures as may be “necessary for the protection of life or health of humans, animals or plants”; Article XX(g) provides measures “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption”. Even if CBAM qualifies Article XX(b) or (g), it still needs to pass the chapeau test and prove that it is not an arbitrary or unjustifiable measure or a disguised restriction on international trade. There has been only one instance in which a country’s measure has met all of the tests necessary to qualify for an Article XX general exception defense. Conclusion When international cooperation on climate protection lacks efficiency and effectiveness, unilateral measures such as CBAM can inspire other states to adopt carbon emission restriction regulations. Meanwhile, according to the report published by the United Nations Conference on Trade and Development (UNCTAD) on CBAM’s potential effects, the EU might need to consider the trade impacts of its new climate change mechanism, especially in developing countries. Furthermore, the compliance issue of CBAM also indicates the need for a reevaluation of the WTO rules before it’s too late to deal with climate change.

About the authors: Ahan Gadkari serves as a Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission. He has previously served as an intern at the Centre for Trade and Investment Law, Government of India. Tushar Rajput serves as an intern at the Centre for Trade and Investment Law, Government of India. "Russian Bear 'H' Aircraft" by Defence Images, available here. On February 24, the Russian Federation initiated a “special military operation” in Ukraine. This was a transparent violation of the prohibition on the use of force codified by Article 2(4) of the United Nations (UN) Charter. Further, it was also inconsistent with Clause 1 and 2 of the Budapest Memorandum on Security Assurances. Vladimir Putin ordered the operation shortly after delivering a fiery speech outlining his intentions to invade Ukraine, and offering a justification for the use of force. (English Translation: here). First, Putin argued, his use of force is an intervention via invitation (IVI) for collective self-defense under Article 51 of the UN Charter within the so-called “Donetsk People’s Republic” and the “Luhansk People’s Republic.” Second, it is to end a genocide he claimed Ukraine has been perpetrating against ethnic Russians. This second justification seems to be invoking the responsibility to protect (R2P), a principle that Russia has historically denied. The purpose of this piece is to provide legal analysis of the assertions made by the Russian President and to explain why they are inconsistent with international law. Every rule in international law is subject to exceptions. The exceptions to Article 2(4) of the UN Charter and the controversial R2P doctrine have specific criteria that must be fulfilled before they can be invoked. Intervention Via Invitation: IVI and collective self-defense are sometimes seen as two independent exceptions to the prohibition of the use of force, and hence as two distinct reasons for governments to legitimately employ force. However, the two doctrines are substantially similar, since both deal with situations in which a state invites/requests the aid of another state’s military. The rationale of the concept is that the prohibition on the use of force only covers the use of force without consent. The International Court of Justice (ICJ) codified IVI as a concept within international law in the Nicaragua case. However, the ICJ also stated that the concept of non-intervention would lose its legal efficacy if the intervention were justified only based on a request for help made by an opposition organization in another State. Indeed, it is difficult to see how the principle of non-intervention would survive in international law if intervention were permitted at the opposition’s request. This would allow any state to interfere at any time in another State’s internal affairs, whether at the request of the administration or the opposition. The ICJ further stated that such an interpretation is not consistent with the present position of international law (para. 246). Applying this principle here, the legalizing effect of consent by “Donetsk People’s Republic” and the “Luhansk People’s Republic” must be questioned. Especially since the situation is such that the consenting government is not legitimate and not recognised by any State other than Russia. Therefore, the Russian defense of IVI is baseless. Defense of Responsibility to Protect: It is essential to reiterate that Russia has historically denied the use of R2P as a valid exception to the prohibition on the use of force. Further, in his speech, the Russian President criticized the use of force by the North Atlantic Treaty Organization (NATO) in various instances. The Russian President stated: “Then came the turn of Iraq, Libya, Syria. The illegitimate use of military force against Libya, the perversion of all decisions of the UN Security Council on the Libyan issue led to the complete destruction of the state, to the emergence of a huge hotbed of international terrorism, to the fact that the country plunged into a humanitarian catastrophe that has not stopped for many years. civil war. The tragedy, which doomed hundreds of thousands, millions of people not only in Libya, but throughout this region, gave rise to a massive migration exodus from North Africa and the Middle East to Europe. A similar fate was prepared for Syria. The fighting of the Western coalition on the territory of this country without the consent of the Syrian government and the sanction of the UN Security Council is nothing but aggression, intervention. However, a special place in this series is occupied, of course, by the invasion of Iraq, also without any legal grounds. As a pretext, they chose reliable information allegedly available to the United States about the presence of weapons of mass destruction in Iraq. As proof of this, publicly, in front of the eyes of the whole world, the US Secretary of State shook some kind of test tube with white powder, assuring everyone that this is the chemical weapon being developed in Iraq. And then it turned out that all this was a hoax, a bluff: there are no chemical weapons in Iraq. Unbelievable, surprising, but the fact remains. There were lies at the highest state level and from the high rostrum of the UN. And as a result: huge casualties, destruction, an incredible surge of terrorism.” The Russian President is criticizing the NATO countries for using R2P as a part of his justification for its use by Russia in this instance. This argument seems extremely hypocritical and lacks consistency. Turning to the so-called “genocide” against the people of Donetsk and Luhansk by Ukraine and granting statehood. In declaring a genocide, Russia has lowered the standard of agreession required for remedial secession. This contrasts with Russia’s assertion that Kosovo did not meet the threshold for ceding from Serbia even after the International Criminal Tribunal for the former Yugoslavia (ICTY) documented the mass atrocities faced by the Kosovar Albanians. The crime of genocide has an important nexus requirement. The abilities of domestic courts and the responsibility of states are subject to legal action taken; however, even before dwelling into these concrete steps, implications in international relations are to be addressed. President Putin has asserted that there is a ‘genocide’ being conducted by Ukraine, and circulated a document to the UN Security Council accusing Ukraine of exterminating the civilian population. Russia’s actions raise questions as to whether a moral right of humanitarian intervention is converted into a right under international law in the event of attempted genocide. Further, it is important to consider the objective standards that determine the threshold of damage before intervention is acceptable. The invocation of genocide represents more than just a shallow casus belli. Genocide entails an aggravated regime of state responsibility. It is a composite crime and consists of acts which are themselves punishable by most existing legislations. The Convention on Preventing and Punishment of the Crime of Genocide (convention) defines acts amounting to genocide and enumerates material offences with necessary mental elements. Extermination, as described in Prosecutor v. Radislav Krstic in the ICTY (para. 492-505), is understood as actions that are subordinated with an intent to destroy or cripple a human group permanently (also see statements made by Sir Hartley Shawcross and Sir David Maxwell Fyfe here.) The convention differentiates between ‘attempt’ and ‘partial act,’ as has previously been upheld by the International Criminal Tribunal for Rwanda in Prosecutor v. Laurent Semanza (para. 316). In the crime of attempted genocide, an entity does not realise its intent, whereas, in a crime of genocide, the acts are attributed to a state to establish the intent. Russia furthers its intervention on the lines of the attempt of genocide, thus shall never meet the standards of intent required to act against Ukraine. Further, the International Law Commission has also held that such an irrational understanding of international standards is inconsistent with international law (page 44). Genocide requires neither many victims nor their deaths, rather a systemic deprivation of identity and acts of inhumanity. Since the Russian annexation of Crimea and subsequent conflicts, this burden of proof against Ukraine has not been met. Such proliferation of the convention and existing principles of international law indicates genocide’s politicisation. The claimed atrocities against the people of Donetsk and Luhansk by Ukraine, even if we assume the Russian President’s assertions to be accurate, the acts would qualify as crimes against humanity, the separate codifications – one in international treaty and other in international custom, does not call for the same response from a State and it will still not be construed to be a genocide. Concluding Remarks Thus, the justifications provided by the Russian President regarding IVI and R2P do not meet the criteria necessary to be valid exceptions to the prohibition on the use of force. The actions by Russia appear to be founded in the warped Russian assertion of the world being dominated by a hostile west, leaving them to be the sole protectors of the people of Russia and Ukraine. Russia never accepted the right of Kosovo for self-determination or remedial cessation on the basis of genocide. However, Russia wants to use the same argument when it favors its policy. Russia’s invasion of Ukraine is neither justified under IVI or R2P nor does it meet their own interpretation of international law in the past.

Xiangyu Ma (LL.M. ’22) is a Contributor to Travaux. Prior to joining Berkeley Law, he obtained his LL.B. degree from Wuhan University in China. Previously, he had interned with public and private stakeholders across different legal sectors such as PE, bankruptcy, dispute resolution, and infrastructure construction. He is particularly interested in the topics of public law, international law, and comparative law. The Hong Kong Court of Final Appeal, available here. On March 30, 2022, Lord Reed, President of the United Kingdom Supreme Court, said that two British non-permanent judges of the Hong Kong Court of Final Appeal (CFA), the highest court in Hong Kong, would resign from their posts on the grounds that the Hong Kong administration had "departed from the values of political freedom, and freedom of expression.” Since the promulgation of the Hong Kong National Security Law, four foreign judges have left Hong Kong’s highest court. Chief Justice Andrew Cheung Kui-Nung regretted the resignations of two non-permanent foreign judges and stated that the judiciary’s commitment to upholding the rule of law and judicial independence is wholly unaffected. In the meantime, nine out of 10 remaining non-permanent foreign judges of the CFA confirmed they would stay. Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, explained her reason for staying on: “the court is…perhaps the last surviving, strong institution of democracy.” Hong Kong has a long tradition of recruiting foreign judges since its 1997 handover. Article 92 of the Hong Kong Basic Law stipulates that “[j]udges…may be recruited from other jurisdictions.” Article 82 also reads that inviting judges from “other common law jurisdictions to sit on the Court of Final Appeal” is permissible. However, the employment of foreign judges in domestic courts, or even the mere citation of foreign law or international treaties in judgments, appears controversial – in the United States, Supreme Court Justice Antonin Scalia, in Roper v. Simmons, held in his dissenting opinion that he “do[es] not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles” and “the only legitimate function of this Court is to identify a moral consensus of the American people.” Despite the skepticism, having foreign faces sitting on the bench is a global phenomenon that we can see in Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu, and many other jurisdictions. This article will examine the pros and cons of this phenomenon and explain why foreign judges are leaving Hong Kong. Legitimizing and De-Legitimizing Foreign Judges in Domestic Courts Most countries in the world expressly require judges to be citizens. However, more than 30 countries have foreign judges serving on their highest or constitutional courts. The reason for rejecting foreign judges is simple—different countries have their own laws, and foreign judges often lack the local legal knowledge to serve in a different state. Further, the court, as a branch of the government, needs to maintain a certain level of political sensitivity to avoid undermining its own legitimacy, especially in adjudicating interbranch disputes – for example, the US Supreme Court developed the Political Question Doctrine in Baker v. Carr to set the boundaries of its own adjudication. However, the role of the judiciary in the political sphere varies from country to country. In Germany, because of a history of Nazis gaining power through democratic procedures, the German Federal Constitutional Court is vested with broader power of judicial review than the US Supreme Court to draw constitutional boundaries on the operation of public powers. For example, it can declare a statute unconstitutional even without a case before the court. That said, foreign judges may not fully understand the local political context when delivering judgments on those highly political or interbranch cases. Additionally, foreign judges’ appearance in domestic courts may stir up strong nationalist sentiments. For instance, Republika Srpska, the Serb-majority substate of Bosnia and Herzegovina (BiH), claimed in 2020 that it would suspend its participation in BiH state institutions until foreign judges are expelled from BiH’s Constitutional Court. This followed a decision by the Court determining that Republika Srpska’s public land law was unconstitutional. Nonetheless, there are also many justifications for having foreign judges in domestic courts. First, judges from jurisdictions with a high degree of the rule of law can boost the international prestige of newly established courts, thereby attracting much-needed foreign investment into the country. Hong Kong fits such a scenario: in 1983, Hong Kong experienced a stock disaster when China and the UK reached a deadlock in negotiating the transfer of sovereignty over the island. One of the reasons for the market panic was that the Judicial Committee of the Privy Council’s status as the highest appellate court in Hong Kong would be replaced by the Chinese judiciary or legislature after the Handover. Therefore, the Chinese government made concessions and agreed to vest the power of final judgment in Hong Kong’s courts and invite judges from other common law jurisdictions to participate in the court hearings. These legal commitments by the Chinese government then became parts of the Sino-British Joint Declaration and were finally written into the Hong Kong Basic Law. Second, in some post-conflict countries, foreign judges are often seen as impartial outsiders who maintain distance from local political groups. As a result, they can empower courts in post-conflict nation-building processes by adjudicating cases as a neutral, apolitical third party. In BiH, a country with serious ethnonational divisions in the past, domestic judges are often suspected of being significantly influenced by their ethnonational affiliations in judicial decision-making. Foreign judges face less appearance of bias. Third, some post-colonial and post-authoritarian countries lack qualified local professionals in the judiciary either because of their colonizers’ negligence of judicial localization or authoritarian regimes’ natural tendency to undermine the importance of the legal profession. For example, Hong Kong did not start its own legal education until the establishment of the Faculty of Law of the University of Hong Kong in 1969. Most of the legal professionals before the Handover were trained overseas, which could not be afforded by many local people. This is also the case in many small Caribbean and Pacific states. As a result, foreign judges are needed in these countries during their transitional periods. Hong Kong’s Foreign Judges in Changing Times Foreign judges have played an important role in the continued prosperity of Hong Kong after 1997. Since the Handover, Hong Kong has maintained a high-level rule of law jurisdiction worldwide, and Hong Kong judgments are cited from time to time overseas. However, the role of foreign judges in Hong Kong has become increasingly controversial as several factors have changed over the years. First, Hong Kong is not as economically important to mainland China as it was at the time of the Handover. In 1997, China was experiencing rapid economic growth after the implementation of its “Reform and Opening-up” policies and sought membership in the World Trade Organization. Hong Kong, an international financial center, was crucial to China’s market reforms. This is the key reason for China’s “one country, two systems” policy, of which expatriate judges are a part. As China became the world’s second-largest economy, its support for this economically rational arrangement waned. Additionally, the economic integration of mainland China and Hong Kong incentivizes Beijing to gradually assimilate the legal system of Hong Kong, especially with other regions of the Great Bay Area, a mega-region that comprises the cities of Guangdong province, Hong Kong, and Macau. Second, and more importantly, the legitimacy of the Hong Kong judiciary has declined in Beijing’s eyes in recent years. In democracies, the judiciary has always faced a democratic legitimacy dilemma because of counter-majoritarian difficulty. However, in Hong Kong, public trust towards the impartiality of the judiciary is often higher than public support of the Chief Executive and the Legislative Councillors. The real legitimacy problem the Hong Kong judiciary has to deal with is its legitimacy in the perception of the Chinese government, given the latter has “predominant political power” over Hong Kong. Some high-profile Chinese scholars have increasingly described the phenomenon of foreign judges in Hong Kong as the “loss of Chinese judicial sovereignty” and argue that the Hong Kong judiciary must be decolonized. Additionally, during the 2014 Umbrella Movement and the 2019 Anti-Extradition Bill Protests, some foreign judges sitting in Hong Kong’s lower courts were tagged by Chinese state media as people “who released the protestors caught by the police.” Therefore, in 2021, Beijing started to reiterate that the principle of “Patriots Governing Hong Kong” is fundamental to “One Country, Two Systems” and applies to judges at all levels. This will make the situation of foreign judges in Hong Kong even more delicate as their home countries are not China. Third, the enactment of the Hong Kong National Security Law also places foreign judges in an ethical dilemma. Macau, the other “Special Administrative Region” of China, amended its Law of Judicial Organization in February 2019. Pursuant to Article 19-A of this law, judges hearing cases involving national security crimes must be selected from a pool of candidates who are Chinese citizens. On the contrary, the Hong Kong National Security Law does not impose nationality restrictions on judges who hear such cases. As a result, foreign judges in Hong Kong may be selected to sit on national security cases and subsequently face ethical dilemmas because adjudicating these cases may be perceived as legitimizing the diminishing of freedoms in this city. Conclusion The imposition of the Hong Kong National Security Law has already caused a brain drain in Hong Kong, and the newest COVID outbreak has exacerbated the situation—as of March 18, more than one million people out of the city’s seven million citizens have tested positive. Strict quarantine measures have led nearly 50% of European companies planning to relocate staff. Hong Kong’s status as Asia’s financial center may be experiencing its most precarious moment since the Handover. Hong Kong’s past success was built on the rule of law, in which foreign judges played an irreplaceable role. If Hong Kong wants to continue to prosper as a vibrant city, more efforts should be made to ensure foreign judges stay on their posts during these challenging times, rather than letting nationalists cheer their departure.