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Dr. Atul Alexander is an Assistant Professor of Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata, and Faculty Advisor of the International Law Student Association-WBNUJS Chapter. He was short-listed as a visiting research scholar at the Stockholm Center for International Law, U.S Naval War College, United States. Dr. Atul Alexander has written widely on International Law, and some of his works were cited by the New York Times and South China Morning Post. Image by Frank van Beek available here. Third-party intervention in the International Court of Justice (the “ICJ”) is increasingly gaining significance. Recently, six states, namely Latvia, Lithuania, United Kingdom, New Zealand, US and Germany, filed applications for intervention under Art. 63 of the ICJ Statute concerning the Russia-Ukraine conflict for which the ICJ is yet to reach a conclusion. The author argues that Third Party intervention through Art. 63 remains unexplored because of the narrow interpretation of the ICJ; hence, the current case (Russia-Ukraine) presents a unique opportunity to shed light on this unexplored aspect. Third-Party Intervention Under Article 63 Art. 63 of the ICJ Statute lays down the procedure for third-party intervention involving “…construction of a convention to which states other than those concerned in the case are parties in question”. Moreover, the construction will be equally binding upon the intervening states. In addition, Art. 82 Rules of the Court (1978) require the states intervening to file a declaration, which may be under exceptional circumstances at any stage in the case. Intervention ordinarily occurs in the merit phase rather than the jurisdictional phase, meaning the ICJ will only permit third-state intervention if it establishes jurisdiction. According to Rosenne, “the purpose of Art. 63 is not to protect the legal interest which may be affected by the decision in the case, but the interpretation of the treaty in question.” Although the provision provides broad discretion for states to intervene, it has been successfully invoked a mere four times. Third-Party Intervention Under Article 63: Voices from PCIJ and ICJ One of the earliest PCIJ cases on third-party intervention is the SS Wimbledon, where the PCIJ accepted the application of Poland. The PCIJ observed that “[t]he suit involved the interpretation of certain clauses of the Treaty of Versailles and the Polish Republic is one of the states which are parties to this treaty.” The first case in the ICJ is the Haya de la Torre, where Cuba made a declaration for intervention under the 1928 Havana Convention on Asylum. Peru argued that the application was time-barred and amounted to an appeal from the previous Asylum case. However, the court considered that the intervention of Cuba was related to the proceedings’ subject matter and hence outside the ambit of its earlier judgment. In the subsequent case of Nicaragua v. United States of America, Nicaragua approached the ICJ, alleging that the United States violated the principles of non-use of force and non-intervention under treaties and customary international law. El Salvador sought to intervene, contending that the ICJ lacked jurisdiction. In its application, it made procedural and substantive claims under Article 36(2) of the ICJ Statute and 51 UN Charter. The ICJ rejected the intervention, as it did not relate to the proceedings’ subject matter, and the substantive question relating to the convention’s interpretation and application was not admitted as ‘‘…it relate[d] to the proceedings’ current phase between Nicaragua and the United States.” Art. 63 was not construed as an absolute right in the above-mentioned cases, and it squarely depends on the ICJ’s construction. El Salvador’s intervention was to contest the jurisdiction and further, “it explained that the Court couldn’t rule on Nicaragua’s application without considering the legality of any armed actions in which the United States had engaged in and accordingly the rights of the United States and El Salvador to engage in legitimate collective self-defense.” The ICJ considered the application premature because it related to the merits. However, the ICJ’s views are contrary to its travaux préparatoires, as the provision’s wording makes it clear that whenever the construction of the convention is involved, it applies to all the phases of the proceedings. In the Nuclear Tests (Request for Examination) case, New Zealand filed an application on the proposed action announced by France, which will, if carried out, affect the basis of the Judgment rendered by the ICJ in the Nuclear Tests (New Zealand v. France) case, ie. “France would conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995’; several Pacific Island states intervened under Art. 63. The intervention was premised on the 1986 Noumea Convention. The convention pertains to environmental protection in the South Pacific region. The ICJ did not hear the application because New Zealand’s declaration did not fall within the scope of the Judgment in the Nuclear Test Case. Further, in the Whaling case, in the context of New Zealand’s intervention, the ICJ observed that "the fact that intervention under Article 63 of the Statute is of right is not sufficient to confer ipso facto on the declarant state the status of intervener." Although the ICJ had several opportunities to clarify the scope of Art. 63, it missed the bus because of its narrow interpretation. The Russia-Ukraine conflict is a rare instance of mass intervention, thus providing a unique opportunity for the ICJ to clarify the legal uncertainties. Third-Party Intervention in Russia-Ukraine The ICJ receives applications for intervention in advisory opinions, but mass participation in contentious cases is rare. In the case of Russia-Ukraine, the ICJ’s provisional measures pertain to disputes concerning the interpretation, application, and fulfilment of the Genocide Convention 1948. Ukraine contended that the Russian Federation carried out special operations in Luhansk and Donetsk oblasts under the false pretext of prevention and punishment of Genocide. Further, Ukraine argued that no act of Genocide as defined under the Genocide Convention (Article III) is committed in the disputed regions. The ICJ observed that “[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” Subsequently, the European Union (the “EU”) issued a joint statement to support Ukraine. Six states (Latvia, Lithuania, UK, New Zealand, US, and Germany) then filed applications to intervene by invoking specific provisions of the Genocide Convention. The intervention broadly covers both jurisdiction and merits. According to the declarations, nothing prevents the ICJ from deciding on the jurisdictional issue in the context of third-party intervention. Correspondingly, for constructing the jurisdiction, Latvia relies on Art. 1 and IX of the Genocide Convention regarding the non-violation complaint. Latvia’s contention is for a broad interpretation of Article IX. Latvia states, “[t]he jurisdiction granted to the Court by Article IX includes disputes in which a state alleges that another state has committed genocide.” Additionally, Art. 1 of the Genocide Convention’s interpretation is not to be abused; hence the obligation under Art. 1 of the Genocide Convention requires good faith performance in accordance with the provisions of the Genocide Convention. In the merit aspect, the use of force cannot justify the obligation to punish and prevent genocide. Instead, the obligation to punish and prevent Genocide should operate within the confines of international law. The UK maintains that there is nothing in Art. IX of the Genocide Convention to preclude the jurisdiction of the ICJ, as the term “dispute” has a wide meaning. Also, the broad interpretation of the Genocide Convention is built into the convention. The UK argued that “[t]he scope of conduct that Article I allows or requires is a matter concerning ‘the interpretation, application or fulfillment’ of this provision and is therefore within the scope of the jurisdiction conferred by Article IX of the Convention.” Concerning the merits, the interpretation of Art. II of the Genocide Convention ought to be in terms of genocidal intent and action, properly characterized as dolus specialis. The interpretation of Art. 1 of the Genocide Convention, is to be done with due diligence, based on all the available information. According to Germany, the intervention of the convention is not limited to the jurisdictional phase but all the phases of a given case, as the dispute involves the “fulfillment” of the convention’s obligation. What to expect? The ICJ is reluctant to allow states to intervene while the question of jurisdiction and admissibility is pending. It is precisely this that would have dissuaded the Maldives, Canada, and Netherlands from intervening when the preliminary objection was pending in The Gambia v Myanmar. Since Russia has not participated in the proceedings, as Brian Mc Garry argues, “the Court has not bifurcated the proceedings into separate phases on jurisdiction and the merits. This is potentially problematic for the intervention’s prospect if questions of jurisdiction or admissibility remain pending until the Court renders its sole Judgment in the case, then hewing to its practice would effectively foreclose intervention.” One of the ways to overcome this conundrum could be to formulate (Art. 63 Declaration) as exclusively confined to the question of jurisdiction, this can be inferred from the EU’s Joint statement, which reads: “We strongly believe that this is a matter rightfully brought to the ICJ.” This can be alternative means to overcome ICJ’s reasoning for deferring intervention. The present declarations are filed on the question of jurisdiction and merits. Hence it would be interesting to witness the ICJ’s standpoint on this matter. However, nothing in the requirement limits the question to jurisdiction or merits. The preceding cases on Art. 63 don’t clarify this issue much. Nevertheless, the proliferation of multilateral treaties might lead to greater recourse through Art. 63. The Ukraine conflict provides ample prospects for the ICJ to shed light on Art. 63’s scope. However, the intervention of the six states in the jurisdictional phase is akin to the Nicaragua jurisprudence, where intervention under Art. 63 should mean that the ICJ has to possess jurisdiction on which it is yet to decide, but this runs contrary to Art. 82 of the Rules of Court, which applies to all phases.

Mansi Srivastava is a Judicial Law Clerk-cum-Legal Researcher with HMJ Prathiba M. Singh at the Delhi High Court, where she assists on a wide variety of areas such as conflict of laws, global data privacy laws, constitutional laws, labour laws, intellectual property laws, and general civil/criminal procedure. She is a member of the Association for Young International Criminal Lawyers (AYICL) and is currently also assisting the Centre for International Law Research and Policy (CILRAP) with their Second Edition of the treatise, ‘Historical Origins of International Criminal Law: Volumes 1-4’. Prior to this, she was an Associate with L&L Partners, advising the India Government and foreign investors on clean energy and infrastructure projects. She graduated from National Law University, Jodhpur in 2019, with a B.A., LL.B.(Hons.) with the late Ms. Pranita Mehta Memorial Gold Medal for Outstanding Mooting Achievements. Her areas of research interest include public international law, international criminal and humanitarian law, international relations, and global data privacy laws vis-à-vis freedom of speech and expression. Image by Marcin Jozwiak available here. “[T]he critical moment may not come when the Court first begins to investigate and pursue charges. Instead, it may come later, after which the ICC’s work may already have helped to stigmatize the wrongdoers, draw international attention to a difficult situation, and catalyze increased political pressure that is conducive to negotiation.” -Complementarity in Crisis This excerpt highlights an increasingly vital function of the first permanent International Criminal Court (ICC) in the world. The Rome Statute recognizes prosecutorial practices along with transitional justice, toward a holistic rebuilding of post-conflict societies. In this vein, Article 53 of the Rome Statute stipulates that an investigation may be forgone if it “would not serve the interests of justice.” Article 75 further recognizes symbolic and restorative forms of reparations before the ICC. The ICC Office of the Prosecutor also expresses support for capacity-building, traditional justice, and institutional reforms. The ICC therefore blurs the lines between retributive, deterrent, and transitional justice, making itself potentially far more effective than a pure prosecutorial mechanism. Therefore, traditional prosecution before the ICC for the newly proposed crime of ecocide should incorporate transitional justice mechanisms to address the urgent issue of environmental damage. Scholars have studied both definitional gaps and practical prosecutorial challenges related to the newly proposed crime of ecocide. Consequently, there are proposals for a more eco-centric definition, a clarification of mens rea requirements, forensic practices to aid evidence presentation for ecocide, and the addition of corporate criminal liability. However, even the foremost critics of the legal concept of ecocide support some movement toward the criminalization of environmental damage, albeit in different ways. Cognizant of the ongoing work in addressing challenges to the Rome Statute’s incorporation of ecocide, this post does not seek to propose more definitional changes. Instead, it takes a step further – considering ecocide as an existing crime in the Rome Statute in some form – to propose the deployment of complementary Transitional Justice Mechanisms (TJMs) to make the criminalization of ecocide significantly more effective. The Role of Transitional Justice Mechanisms in Vulnerable Communities At the outset, TJMs are defined as judicial or non-judicial measures to address rights violations and establish rule of law in societies emerging from repressive regimes. Such mechanisms serve to achieve accountability, reconciliation, and redress for the violation of victims’ rights. Indigenous groups, women, and other vulnerable groups that are known to be disproportionately impacted by environmental destruction. Therefore, TJMs would be instrumental in societies where social and political systems have failed to prevent and prosecute environmental destruction. To understand the precise role of TJMs in addressing environmental destruction, this post reviews the purported objectives of criminalizing ecocide. These objectives identify the gaps in international environmental laws, demonstrating the need for the proposal of ecocide. Such objectives are then mapped against corresponding TJMs that would help achieve the objectives in conjunction with prosecution for ecocide. Applicable Transitional Justice Mechanisms for Tackling Environmental Damage Ecocide has been proposed as a fifth crime to address various issues plaguing international environmental law (IEL), as per the UN Report on Gaps in IEL. These issues include (i) lack of harmonized IEL principles; (ii) lack of robust enforcement and implementation procedures; (iii) lack of political will and inadequate engagement of stakeholders and civil society; (iv) limited reporting, knowledge gaps, and inadequacy of data due to high costs of sampling and analysis and lack of scientific experts, especially in developing countries; and (v) absence of review mechanisms and global liability and compensation regimes (such as the specific exclusion of liability and compensation for climate damage from the Paris Agreement). In this situation, the most useful tools of TJMs applied ecocide are as follows: People’s Tribunals: Especially in cases of environmental destruction where there are obstacles like lack of political will, scant stakeholder engagement, and data inadequacy, tribunals like the International Monsanto Tribunal and Permanent People’s Tribunal provide platforms for vulnerable communities to reclaim their rights. Relatively free from political influence, tribunals enable people’s participation in the justice system, allow critiques of crimes, and provide accurate recommendations even if perpetrated by powerful corporate actors, state organs, or state-enabled actors (such as through licensing regimes). Driven by private citizens and civil society organizations, acting as judges, investigators, and witnesses, people’s tribunals further free public discourse. Moreover, such tribunals are better positioned to gather local evidence without the ICC’s access barriers. Most recently, the Uyghur Tribunal gathered extensive evidence, conducted a trial, and decided that China was committing genocide. Despite the ICC’s refusal to open an investigation, this successful tribunal illustrates an effective people’s tribunal, where civil society actors and victims, cooperating with international legal experts, create a record of evidence and assist the judiciary with preliminary assessments of claims. People’s tribunals also factor indigenous practices into the restorative process, as the traditionally environmentally sustainable practices of indigenous communities become especially relevant in cases of environmental damage. This inclusiveness would contribute immensely towards strengthening the prosecution of ecocide with proper evidence and victim participation. Reparations and Liability Regime: As noted by the UN Report on Gaps in IEL, the lack of harmonized principles of liability and knowledge transfer is a crucial gap in IEL. Capacity-building, technological support, and legislative reforms toward a more environmentally conscious regime are crucial in societies destroyed by environmental damages. Obtaining meaningful reparations is a primary objective of both the ICC and TJMs. Article 75 of the Rome Statute is pivotal in its recognition of non-monetary compensations such as the return of property, rehabilitation, and symbolic reparations. Considering that most perpetrators of ecocide are corporate entities with substantial resources, TJMs could enable a reparations regime where such perpetrators contribute to rebuilding society and providing resources. These reparations, unlike the imprisonment of some figureheads, could actually impact the victims’ lives. Therefore, this provision would lead to meaningful reparations for victims and a stronger civil liability regime. Further, the unindicted perpetrator provisions under Article 25 of the Rome Statute would bring other responsible actors, like participants in the supply chain, to the forefront. For instance, companies selling LCDs in a developed country, source the components through various suppliers and distributors, who ultimately use manufacturers of LCDs in a developing country, emitting fluorinated greenhouse gases in such countries. Thus, a comprehensive and tailored reparations and liability regime for ecocide provided through the Rome Statute, elicits stronger domestic supervisory and regulatory mechanisms to encourage state responsibility and systemic changes in the environmental legal and policy framework. Such international provisions supplemented by stronger domestic support, would make commissions like the UNCCC, which held Iraq responsible for environmental damage in Kuwait, more of standing institutions instead of ad hoc inventions. Transforming such commissions into standing institutions would strengthen the deterrent effect on potential perpetrators, who currently act without fear of facing any certain punishment. Therefore, tying up the loose ends of the reparations regime for environmental damage is crucial to provide effective and consistent remedies, as also deter further damage. National Legal Reforms: One of the fundamental criticisms about the proposed definition of ecocide is that it is anthropocentric, meaning it shields environmental damage from prosecution to the extent that such damage is required for some socially or economically beneficial activities. Therefore, the crime subordinates environmental protection to human benefits. TJMs can encourage ecocentrism. For instance, national awareness of ecocide could be used to accord a legal personality to natural resources, as was achieved for the Vilcabamba River in Ecuador to secure a constitutional injunction. This would be instrumental in developing a collective conscience that ecocide is not victimless and enabling ecocentric reparations. Evidentiary Benefits: A persistent concern in prosecuting environmental crimes is the lack of sophisticated scientific/forensic evidence gathering mechanisms, especially in developing economies, which are the most impacted by environmental damages. With ecocide included in the Rome Statute, the ICC’s scientific and forensic practices for evidence collection and the scientific experts could be lent out domestically to provide investigative skills and technologies. This would enable the localized collection of data, as well as faster identification of damages by local organizations with more sophisticated technologies. Recent proposals to the ICC for improvements to aid in more scientific and forensic evidence collection would also provide effective investigations by knowledge transfer in domestic jurisdictions, thus easing the prosecutorial burden in the long run. Conclusion Therefore, ICC and TJMs stand to mutually benefit from each other, not only by criminal prosecutions but also by reformative and restorative justice. Hybrid mechanisms, where domestic and international laws are synergized, have already demonstrated improved results such as the Extraordinary Chambers in the Courts of Cambodia and the Columbian Special Jurisdiction for Peace. Such a mandate would pave the way for sweeping changes in societies’ responses to environmental issues. A version of this text is originally hosted on Völkerrechtsblog.

Pratyush Singh is a third year student of the B.A. LL.B (Hons.) programme at National Law School of India University, Bangalore. Image by naturalflow available here. In 2016, the Arbitral Tribunal pronounced the South China Sea Verdict in The Republic of the Philippines v. The People’s Republic of China (the “South China Sea Verdict”). While the judgment was well received around the world for promoting the freedom to navigate, there were aspects of the verdict that went ignored. One of them was the status of maritime features, which are important because they help generate exclusive economic zone (“EEZ") rights. Regarding this issue, the tribunal concluded that none of the contested features could be categorized as islands, thereby denying China a vast amount of EEZ rights. While a lot has been said about the specific impact of this decision, this paper attempts to showcase how the reasoning of the tribunal itself can lead to the status of islands around the world, especially India, being put up in question. To that end, this article first provides a brief overview of the decision.Second, it delineates the reasons why the rationale put forward by the tribunal lacks legal standing. Third, it showcases how the application of the verdict’s rationale can adversely impact the status of some islands of the Union Territory of Lakshadweep. The UNCLOS Verdict on South China Sea In 2013, due to the People’s Republic of China (the “China”) claiming control over some contentious islands in the South China Sea, the Philippines (the “Philippines”) initiated arbitral proceedings against China, questioning the legality of such activities. Based on the claims put forward by the Philippines, the findings of the tribunal can be summarized into four groups. First, with respect to China’s substantial claim over South China under its ‘nine-dash line,’ the tribunal stated that China’s claim of historic rights is not consonant with the UN Convention on the Law of the Sea (“UNCLOS”). Second, the tribunal opined that by blocking the Philippines’ access to fishing and extracting hydrocarbons near the area around Scarborough Shoal, China had violated the Philippines’ sovereignty over its EEZ. The tribunal also observed that constructing artificial islands near the Spratly Islands was a violation of Articles 192 and 194 of UNCLOS because such activities caused long lasting damage to the marine environment. Third, the tribunal accepted the Philippines’ contention that China’s construction of artificial islands had “aggravated and extended” the dispute resolution process. And fourth, the tribunal stated none of the disputed geographical features could be categorized as islands under Article 121 of the UNCLOS, and hence none of them would generate an additional EEZ. The curious case of Article 121(3) Article 121(3) of UNCLOS states that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” In the South China Sea verdict, the tribunal used this provision to opine that all the contested land features fell under the category of “rocks” and thus would not give way to any new EEZ for China. This conclusion was important as the tribunal had initially declared that considering all of the land features as part of the Philippines’ EEZ “would require the Tribunal to rule out the possibility that any feature claimed by China could generate an entitlement to an exclusive economic zone that would overlap that of the Philippines.” VCLT While interpreting Article 121(3), the tribunal stated that besides observing the text and objective of the provision as envisaged by Article 31 of the Vienna Convention on the Law of Treaties (the “VCLT”), it would also look at the travaux préparatoires (preparatory works), which is part of Article 32 of the VCLT. To a layman, this would give a perception that both Articles hold equal value and can be applied simultaneously. However, the travaux préparatoires under Article 32 is not a primary but a supplementary means of interpretation, which clarifies Article 31 when the ordinary meaning of the text under Article 31 leads to results that are vague in nature. The Permanent Court of International Justice undertook a similar approach as was undertaken in the landmark Lotus Case, wherein the Court stated that if the provision of law is clear in its meaning, then taking recourse to its preparation and negotiation is a redundant exercise. Even if we accept that the tribunal took a valid approach in applying both Article 31 and Article 32, the tribunal did not apply the law correctly, as discussed in the next section. Interpretation of Terms Article 121(3) uses the term “rocks” as opposed to other provisions, which use the term “islands.” The tribunal evaded this distinction by stating that any attempt to crystallise the distinction between the two terms failed during the negotiation of UNCLOS. However, going back to their own approach with travaux préparatoires, they failed to take cognizance of the fact that based on the drafting history, most drafters had looked at features such as size and composition as the differentiating factors between the “high-tide features.” The second contentious interpretation was of the term “human habitation.” While interpreting the term, the tribunal first relied upon the meaning provided by the Oxford Dictionary but then included a qualitative element. Under the qualitative element, the tribunal stated that the term implies a long-term natural presence of humans in a stable community. It must be noted that there is no legal ground to impose such a high standard, when the text of Article 121(3) provides no such requirement. Finally, the tribunal suggested that the phrase “economic life of their own “means that the land feature must be able to sustain an “independent economic life” without being provided resources from the outside world. Jonathan Charney argues that until the piece of land provides some resources that people can exploit and generate revenue from, it should be within the ambit of “economic life.” Other commentators have even gone so far as to say that any form of economic activity, for example,s even a lighthouse, should fall within the bracket of “economic life.” Coming to the instant case, the tribunal remarked that the mere presence of some fisherman around the rock would not amount to an “economic life of their own.” Purpose of the Provision While analyzing the purpose of Article 121(3), the tribunal stated that the provision helps prevent states from amassing maritime entitlements for tiny or potentially distant features of the land. Once again, no textual basis supported the tribunal’s conclusion. Such interpretation is also not in harmony with the existing control by the states over tiny features of the land. For example, France claims sovereignty over the tiny island of Tromelin, which is located more than 7000 km away from it in the Indian Ocean. Lastly, the tribunal referred to the negotiations of the Seabed Committee to remark that the overall effect of Article 121(3) does not grant EEZ rights to uninhabited islands. Such interpretation actively disregards the nuance between ‘inhabited’ and the ‘capacity to inhabit.’ The latter is relevant to the Article. For example, in Denmark v. Norway (Jan Mayen Case), even though the contested land feature (a scientific outpost) had been abandoned after some attempts at mining, the International Court of Justice took into account that it has factors that can sustain human beings, categorizing the land feature as an island. The entire line of reasoning followed by the tribunal seems to have ignored years of state practice such as the Elizabeth Islands for Australia or Mathew Island for France. How can it impact India? The tribunal’s standard for an island can be summarized as: first, capable of sustenance without the help provided from outside, second, the economic life must not be merely dependent on the water body around it but must have an economic identity of its own, and third, it should be inhabited by a community. Consider the example of Lakshadweep. It is a union territory of India which constitutes a group of 36 islands in the Indian Ocean region. While in itself it only occupies 32 sq. kms, its strategic location provides India with 4,00,000 sq. kms of EEZ. Hence, any change in the status of any of the islands would have a significant impact on India’s political and economical interests. The problem lies in the fact that the tribunal’s reasoning deems many islands of Lakshadweep as ‘rocks’ under Article 121(3). Firstly, as noted in the Lakshadweep Development Report, the typology of the soil and the scarce supply of fresh water severely restrict Lakshadweep from being self-reliant. Secondly, like in the South China Sea verdict, the eleven islands of Lakshadweep are primarily dependent on fishing activities and thus do not form a part of an economic activity, which is not oriented around just the water body. Suheli Par (which is formed out of three islands, namely Valiyakara, Cheriyakara, and Indira-Shastri Dweep) has some fishing activities nearby but is completely uninhabited otherwise, just like 17 other islands of Lakshadweep. The tribunal does not consider any recourse regarding the size of the island as relevant. Having completely failed the criteria put for the tribunal in the South China decision, the status of these islands can also be easily challenged. This becomes of extreme importance with the emergence of events like a US warship sailing within India’s EEZ of India near the Lakshadweep islands. Conclusion While the Indian Government may have supported the South China Sea verdict, it warrants a deeper inspection. Some facets of the judgment are obviously in tandem with the inherent principles of international law. However, that should not blind us to some subtle principles pushed through these judgments, including the categorization of islands as "rocks." This paper looked into the reasoning provided by the tribunal and how it can have broader ramifications if applied to the islands in India and the world at large. Such interpretations should be challenged even when the tribunal unequally applies them to the eastern countries.

Alex MacLennan (J.D. Candidate, Class of 2024) is a contributor. His interests include international and comparative law, US and foreign elections, history, and economic policy. Alex holds a B.S. in Industrial Design from the University of Cincinnati. Before law school, he did product design work for various companies. He speaks enough French and German to be useful in continental European travel. Newly-appointed Prime Minister Liz Truss is currently dominating the headlines inside the United Kingdom. But for those not following domestic UK developments, the best-known piece of British news has not to do with the Liz now living at 10 Downing Street, but rather with the Liz who used to live in Buckingham Palace— Queen Elizabeth II. For some, this fascination with the monarchy may seem unnecessary—after all,many republics were built on throwing off precisely that monarchy. However, the member states of the Commonwealth of Nations have a vested political interest in the transition. Not only is the monarch traditionally head of the Commonwealth, but the monarch is also officially the head of state for a subgroup of 15 member states known as the “Commonwealth Realms.” In life, it was rare that Elizabeth II would ever actually exercise power to interfere with governance of the Realms. However, her death has renewed the conversation regarding the continued place of the monarch as the head of state. While Elizabeth II's death will likely accelerate some states republicanizing, particularly in the Caribbean, other Commonwealth Realms will continue to hold on to the monarch as head of state and the larger network of the Commonwealth will continue to hold sway, even as it confronts its colonial past. Where the Sun Never Set References to the Sun never setting on the British Empire go back at least as early as 1773. For much of the 19th century, the United Kingdom was the world’s dominant economic power as it exercised its financial and military prowess around the world. But pressures for autonomy and independence in the lands it colonized continued to grow, driven by such factors as a lack of political rights, growing nationalist sentiment, and the exploitation of native peoples. Indeed, one common rejoinder was that it was “[n]o wonder that the sun never set on the British Empire, because even God couldn't trust the English in the dark.” In the 20th century, the network of states connected by British colonialism gradually transitioned from forced empire to the modern Commonwealth of Nations, a political association of independent states. Some countries opted out of the Commonwealth, some remained but removed the monarch as head of state, and some have kept the monarch as head of state to the present day. While Elizabeth II was generally popular, King Charles III is not nearly so popular, raising questions about the continued role of the monarch as head of state. Growing Caribbean Sentiment In 2021, Barbados implemented a historic change in its constitution as it removed the monarch as head of state and replaced the position with an elected president, thus officially becoming a republic. Of course, Elizabeth II was still queen at the time, so it was not the identity of the monarch that catalyzed the change—rather it was the combination of growing republican sentiment and a decades-long debate. However, Elizabeth II's death may give a fresh boost to republican efforts in other nations. During her reign, the prime minister of Antigua and Barbuda, Gaston Browne, expressed support for removing the monarch as head of state and that the country should “one day become a republic.” Yet, he also noted that such a move was “not on the cards” at the time. However, shortly after signing a document confirming Charles’s status as king, Browne announced that he would push for a referendum within three years on whether to become a republic. As part of the effort, Browne noted that “[t]his is not an act of hostility or any difference between Antigua and Barbuda and the monarchy, but it is the final step to complete that circle of independence, to ensure that we are truly a sovereign nation.” Furthermore, as was the case with Barbados, Browne noted that even a republican Antigua and Barbuda would remain part of the Commonwealth. In addition to Antigua and Barbuda, at least five other Caribbean countries—Belize, the Bahamas, Jamaica, Grenada, and St. Kitts and Nevis—had expressed a desire to remove the monarch as head of state prior to Elizabeth II’s death. Jamaica had already announced plans to hold a referendum on the issue in 2025, and Belize has a constitutional reform commission poised to study the issue. Canada Unlike its rambunctious neighbor on its southern border, Canada’s independence process was comparatively slow and peaceful—notwithstanding such events as the Rebellions of 1837-38. In fact, relations with the monarchy were friendly enough that Canada’s first prime minister, Sir John A. Macdonald, preferred that the country be called the “Kingdom of Canada.” Adam Dodek, The Canadian Constitution 37 (Jenny McWha ed., 2nd ed. 2016) (noting that the British Colonial Office denied Macdonald’s choice of name out of concern over angering the United States). Like other Commonwealth Realms, the monarch is represented by a governor general who has immense authority on paper but rarely uses that power. Regarding bills, no Canadian governor general has withheld assent or reserved a bill since 1878. Dodek at 61. Additionally, exercise of other significant powers in opposition to the prime minister—such as in the notorious 1926 King-Byng affair—would likely create a constitutional crisis. Practically, the area where the governor general is most likely to make headlines—aside from scandals—is when the governor general exercises powers in accordance with the prime minister’s wishes but in a way that angers opposition parties. Modern examples of this include the 2008 prorogation dispute and the 2021 early election call. Perhaps the lack of a practical role for the monarch or governor general in determining Canadian governance is the reason Elizabeth II’s death and Charles III’s accession have had little impact on the Canadian public. A poll taken in September 2022 found that 75% of Canadians felt little or no impact from the Queen’s death, and 61% were indifferent to the accession of Charles III. Some polling does exist to give anti-monarchists hope. While 82% of Canadians felt that Elizabeth II did a good job, only 56% are confident that Charles III will do the same. And polling prior to Elizabeth II’s death also indicates that support for the monarchy is a minority position. However, the same polls also found large numbers of undecided respondents and a lack of consensus on a preferred alternative—results that one commentator likened to a “collective shrug.” Unlike other countries that may be able to easily act after a referendum against the monarchy, Canada’s constitution makes ending ties to the monarchy highly difficult. Canadian constitutional law experts note that such a constitutional amendment would require both the consent of parliament and the unanimous consent of all ten provinces. Given differences in provincial politics and the track record of previous referenda, experts doubt such an amendment would be possible without broad popular support and a will to push for the change. Given the above opinion polls, neither of these exist in Canada at the moment. As a result, the monarch will likely remain Canada’s head of state for some time yet. Whether Charles III will get his face on the currency is another matter, however. Australia Australia is no stranger to republican politics, having held a 1999 referendum on replacing the monarchy where the “no” vote prevailed 54.9% to 45.1%. The 2022 election of a Labor government under Prime Minister Anthony Albanese has given some renewed hope to Australian republicans, but they may have to wait for their desired change. Albanese does have a referendum on the agenda, but it is about recognizing Australia’s Indigenous people in the constitution—an election promise to be done within his first three years. Thus, even if Albanese wanted to accelerate a republican referendum—currently ruled out for his present term—the Indigenous representation referendum looks likely to require his current political capital and push the republican referendum several years into the future. New Zealand Recent polling in New Zealand indicates support for the monarchy even after Elizabeth II’s death. Perhaps reading public sentiment, Prime Minister Jacinda Ardern has not pushed for a referendum on the issue, instead only saying that the country would likely become a republic within her lifetime. Of course, Ardern is also known for being one of the youngest prime ministers in New Zealand’s history, so her statement leaves room for New Zealand to keep the monarchy for decades to come. Conclusion The death of Elizabeth II has brought the nature of the Commonwealth and its Realms further into question. Although the Realms are independent in the practical sense of running their own affairs, they retain a geographically distant monarch as their official head of state. For some, the process of ending this arrangement began before Elizabeth II’s death, but the passing of the Crown has already led to new discussions of accelerated timelines and brought the issue to the forefront. Still, one should not underestimate the popularity of the monarchy and difficulty of change in some Realms. While expressing openness to republicanization, politicians also recognize that popular support, constitutional amendment realities, and more pressing issues stand in the way of swift action to reform. There is little indication that removing the monarch as head of state threatens the continued existence of the Commonwealth. Most member states do not have the monarch as head of state, and even those considering becoming republics have not indicated a desire to leave the organization. More likely, these recent developments signal the next steps in the organization’s evolution – a future where the Commonwealth has more republics and fewer Realms. The Commonwealth has evolved in the face of political reality before, and it looks poised to do so again.

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.