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About the author: Angela Chen (J.D. Candidate, Class of 2024) is a Contributor to Travaux. Her interests center on critical, deconstructive, and decolonial approaches to international law and international relations theories. Angela holds B.A. degrees in Political Science and Philosophy from the University of Chicago, and an M.Sc. degree in International Relations from the London School of Economics and Political Science (LSE). She is a native speaker of Mandarin and proficient in French. "Peacekeeping - UNMISS" available here. Introduction: State Capacity and “Failed States” Max Weber famously posited that the defining characteristic of a state is its ability to claim the “monopoly of the legitimate use of physical force” within a given territory. Following Weber, scholars have tended to appraise the extent to which a state is “successful” or “capable” by assessing the strength of its institutions. For example, the notion “state capacity” denotes the ability of a government to implement policy goals. A state lacking in capacity is defined as a “fragile” or “failed” state; the “collapse of state institutions… paralysis of governance, [and] a breakdown of law and order” often characterize a “failed state.” Failed states occupy a prominent position in international law, as they call for international intervention, including military and humanitarian support. The end-goal of such intervention is to re-establish an effective government. This article aims to examine, problematize, and reconsider the concept of “failed states'' and its place in international law. Drawing on the poststructuralist school of International Relations (IR), this article interrogates the ways in which the notion “failed states” constructs powerful binaries that render certain courses of action imaginable and possible. As discourses are always undergirded by power relations, the stigmatization of certain states as “failure” then risks reproducing existing global power structurations, perpetuating Eurocentrism, neo-colonialism, and neo-imperialism. Finally, this article proposes alternative, pluralistic ways of conceptualizing statehood which pertain to the Marxian concept of uneven and combined development. Poststructuralist IR: The Discursive Construction of “Failed States” The poststructuralist school of IR focuses on the interplay between discourse, power, and subjectivity. In poststructuralism, power relations operate to constitute the subject. Power is relational and permeates all interpersonal interactions and social relations. Inextricably connected to the notion of power is the notion of discourse, as discourses are always embedded in power relations. A discourse is a “system of statements in which each individual statement makes sense,” producing interpretative possibilities by making it impossible to think outside of the discourse. Discourses create subjects, attach meanings to them, and position them vis-à-vis one another; the subjectivity of the self is therefore always defined against the backdrop of the Other(s). There can be no pregiven self existing autonomously in a vacuum. Discourses are as such undergirded by binaries (such as “presence/absence,” or “male/female”), and enable the fathomability and possibility of actions. Through the poststructuralist lens, the discourses on “failed states” imply the existence of “successful states.” The success/failure binary constructs meanings and possibilities for actions, thereby rendering intervention thinkable, possible, and even “natural.” As power relations underwrite discourses that the powerful monopolize, successful states’ status as “successful” or “capable” gives them the legitimate license to intervene. Such discursive constructions render the “failed” states lacking in state capacity as deviant to the normality of international life and compel the international community to take remedial actions. Assumptions about the “ideal” statehood that are ineluctably European/Eurocentric underlie the ideas of “stateness.” Indeed, canonical theories on statehood focus solely on the “Western” experience: Thomas Hobbes’ formulation of the Leviathan as the aggregation of the power of all subjects is not meant to apply to the “[s]avage people of America.” Max Weber owes his conception of the state as an entity monopolizing the use of legitimate force to Hobbes’ non-inclusive formulation. Charles Tilly only surveys the experience of Western European countries in coining the influential axiom that “war makes states, and vice versa.” In monopolizing the proper definition of statehood, the Western experience inadvertently perpetuates hegemony and Eurocentrism with regard to power, knowledge, ideology, and discourse. “Failed States” in International Law The manifestation of such discursive hegemony in international law is readily apparent. Definitions of failed states are amorphous and often negative, as failed states are always defined in opposition to successful states. Failed states thus always exist as shadows, as “dark mirror image[s].” The classic legal definition of statehood is reminiscent of Hobbesian-Weberian-Tillyian legacies, and is found in the Montevideo Convention, which notes: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.” Failed states are therefore characterized by the lack of control over their population, political instability, socioeconomic inequities, and poverty; they are often on the brink of collapsing into civil war and even into complete anarchy. Recent examples of failed states include Somalia, former Yugoslavia, Rwanda, Congo, and Afghanistan. The arbitrary and contingent nature of the distinction between statehood and anarchy aside, what is at issue in the examples of failed states is that they are almost all non-Western, post-colonial, Third World states. The endogeneity problem is apparent here: the international community characterizes these states as “failure” without reflecting on the extent to which their failure was attributable to their colonial history and “peripheral position in the global politico-economic structures.” Indeed, as Immanuel Wallerstein theorizes, in the world-system, natural resources such as raw materials flow from the periphery (developing countries) to the core (developed countries); the market is how the core exploits the periphery, which renders the periphery perpetually peripheral. In directing our attention to the phenomenon of failed states and their remedies, the dominant international intervention discourses obscure the “structural and constitutive” relationship between failed states and successful states, which is a relationship that colonialism, liberalism, and imperialism enabled. The eliding of the inherently constitutive nature between successful and failed states allows successful states to intervene with impunity. Indeed, intervention is often taken as the legitimate and “natural” course of action in the face of failed states. The rationale is that state failure presents challenges for the international community, primarily in terms of humanitarian and security risks. Indeed, state failure is often accompanied by poverty, violence, and refugee flows. Failed states have also often been associated with terrorism and extremism. These challenges call for both short-term and long-term social engineering by other (developed) countries in order to restore the failed states to functioning states. The track record of international intervention, however, is grim and often “too little too late.” State-building efforts often devolve into long-term occupation which then ends up creating the problems such efforts initially sought to resolve. Specters of neo-colonialism and neo-imperialism also loom large as developed countries attempt to impose their preferred institutions, political systems, ideologies, and ways of life onto the failed states. Ways Forward: Recognizing Developmental Multilinearity The stigmatizing label of “failed states” has brought forth more bane than boon. The international community’s fixation with the notion “failed states” could be diverted by appreciating alternative modes of governance and social organization. The extant measures of state capacity betray Eurocentric assumptions of what a state is and how state-making should unfold, informed by the canons of Hobbes, Weber, and Tilly. In Dan Slater and Diana Kim’s study of non-Western states such as the Philippines in the 1940s and 1950s, and Burma from the 1940s onward, they concluded that states’ appetites and practices in centralizing power, controlling population, and monopolizing violence are highly uneven. The Marxian theory of uneven and combined development (U&CD) might serve as a useful heuristic for pluralizing our understanding of statehood. Unevenness refers to developmental variations both within and between societies, as well as the attendant spatial differences between them. Combination refers to the ways in which states’ relations with other developmentally different states determine the internal relations of any given society. Taken together, U&CD suggest that the developmental trajectories of different countries are multilinear. The developmental path of Western states is only one of the many “spatiotemporal vectors” of unevenness and combination, and therefore should not be taken as the infallible yardstick for appraising statehood. Conclusion The theory of U&CD could serve as an antidote to the Eurocentric, neo-colonial, and neo-imperialist assumptions underlying the notion “failed states” as well as the international interventions this notion enables. Indeed, much more is at stake beyond the creation of more chaos and instability in orienting our horizons around the binary of successful/failed states. Nonetheless, although the theory of U&CD offers a way of reclaiming the ontology of non-Western, developing states, it ultimately has its roots in “Western” theory and philosophy (given its Marxian genesis). To truly assert the epistemologies of the non-Western, there needs to be more inclusivity and receptivity in international law to non-Western theorizations of the state (or the absence thereof).

About the co-authors: Abhinav is a fourth year law student at National Law University in Jodhpur and Hardik Malik is a fourth year law student at National Law School of India University in Bangalore. Photo by NIH, available here. Introduction The TRIPS Waiver Proposal stems from the TRIPS Agreement and thus, before expounding on the waiver, it becomes pertinent to shed some light on the agreement itself. TRIPS is short for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, which came into effect on January 01, 1995. As the WTO puts it, the TRIPS Agreement continues to be the most comprehensive multilateral agreement on intellectual property. Much of the debate on the TRIPS Waiver Proposal focuses on global inequalities in the manufacture and distribution of vaccines. Developing countries argue that lacking domestic infrastructure and insufficient foreign support has made the waiver necessary to boost vaccine production. They rely on recent data that only 0.3% of global vaccine administration was carried out in the 29 poorest countries which make up 9% of the world population. The opponents (mostly, developed countries) downplay the role of intellectual property in limiting vaccine production, and blame overburdened supply chains and the complex technologies necessary to manufacture new mRNA vaccines. For example, the European Union’s counter-proposal to the waiver focuses on fixing global supply chains and recommends compulsory licensing for producing “vaccines and therapeutics” against COVID-19. However, on closer inspection of the waiver’s text and statements by India and South Africa at the WTO, it is clear that the waiver goes beyond vaccines — it targets IP in the broad range of “products and technologies…for the prevention, treatment or containment of COVID-19.” This encompasses IP waivers for PPE kits, medical-grade masks, ventilators, oxygen concentrators, and even dialysis machines. This article focuses on non-vaccine products embedded in the proposed waiver by discussing its legal validity and responses to contentions raised by the anti-waiver bloc. The WTO Agreement recognizes the right of any member-state to request a “waiver of its obligations” under the WTO or other recognized agreements (including TRIPS). Thus, the request for a waiver of TRIPS obligations is legally valid. Additionally, past WTO jurisprudence requires waivers to be temporary, exceptionally granted, and narrowly interpreted. On a prima facie level, TRIPS meets these conditions and the member-state consensus is the only remaining (and most challenging) hurdle to its approval. Criticisms of TRIPS Agreement This brings us to two common criticisms levied by the anti-waiver bloc. First, the TRIPS flexibilities offer impracticable alternatives (particularly, compulsory licensing) as opposed to an outright waiver of IP. Second, the proposal does not solve the more serious problems of undisclosed technologies and complex supply chains. However, these criticisms are unfounded for the non-vaccine products under the waiver. a) Lack of Effective Alternatives The TRIPS Agreement permits member-states to temporarily waive Intellectual Property Rights without the right-holder’s permission, and allows third-parties to make patented products for domestic use, or to export to countries in need. Unfortunately, compulsory licensing is a lengthy, procedurally inefficient and extremely narrow flexibility under TRIPS — making it unsuitable for a time-sensitive global emergency. Further, compulsory licensing requires application on a product-by-product and case-by-case basis, and imposes complex requirements before approval. This rule makes import through compulsory licensing extremely challenging for non-vaccine products. Essentially, a member-state must replicate compulsory licensing procedures for every product and technology, and it must also demonstrate an “insufficient manufacturing capacity” in each of these products. This creates challenges on two fronts: First, comprehensively assessing domestic shortages for each product without any TRIPS guidance will likely prove to be difficult because flow of information regarding such shortages cannot be effectively achieved without guidance from the TRIPS Agreement. Without it, intellectual property rights could act as a barrier to sharing such information. Second, it only analyses capacity and not efficacy — the prevailing capacity may be numerically sufficient but not as efficacious as the patented technology to improve the offered healthcare. For instance, Indian manufacturers mass produced ventilators in 2021 creating an excess supply — however, many hospitals have refused to accept these ventilators citing serious malfunction issues and compromised patient care. Even when serious malfunctions are not found, nations may still want to substitute existing products with better-equipped technologies. The degree to which TRIPS will factor in the efficacy of existing manufacturing capacity while granting licenses is unknown. There are other, more fundamental challenges to the suitability of compulsory licensing for non-vaccine products. The most prominent are the limitations under the import route to pharmaceutical products. “Pharmaceutical products” includes any synthesized, biological or other chemical product (like drugs, medicines, etc.) or even an active ingredient necessary for the manufacture of such drugs or medicines. However, this definition of pharmaceutical products entails that non-vaccine products like ventilators, medical-grade masks, and PPE kits, among others, do not fall within the ambit of such products. A developed country may not be permitted to export these products under the compulsory licensing provisions. Additionally, it is still unclear how WTO Panels may choose to define “pharmaceutical products”, and the uncertainty itself complicates matters for countries that are hoping to benefit from these provisions. Lastly, member-states are reluctant to use compulsory licensing due to backstage pressures (including trade sanctions) from developed countries. These prevailing forces will intensify for non-vaccine products — as these products are not COVID-specific and may be employed for a wide range of medical applications that function even after the pandemic subsides. These right holders will lobby against the grant of compulsory licenses to protect their future profitability. The waiver will disarm these backstage pressures and allow member-states to freely function towards efficacious medical support for COVID-19 patients. The General Council’s August 30, 2003 decision itself noted that WTO members labouring with lack of sufficient manufacturing capacities in the pharmaceutical sector could face obstacles in utilizing compulsory licensing, and thus justified the waiver of obligations set out in Articles 31(f) and (h) of the TRIPS Agreement. This provides sufficient justification as to why a TRIPS waiver (and not compulsory licensing) is the way ahead for optimum production and utilization of non-vaccine products to combat the COVID-19 pandemic. b) Undisclosed Technologies The second criticism to an IP waiver is the issue of undisclosed technologies. Vaccine production involves complex manufacturing processes and systems which the majority of firms do not have, and the waiver does not help in their procurement. However, these issues are not as common for non-vaccine products — firms have successfully reverse-engineered many products by relying on 3-D printing and past industry experience. Non-vaccine products precede the pandemic and their functionality has already been extensively studied. Even components required for manufacture of non-vaccine products are more accessible as opposed to supply chain risks in vaccine production. There have been instances where entities in possession of technologies and raw components could not produce essential medical relief products because of IP protections. For instance, an Italian start-up developed replacement ventilator valves using 3D printers to help intensive care patients, but the original manufacturer is now threatening legal action against the start-up. In yet another instance, Kentucky Governor Andy Beshear and the US Federal Government urged multinational company 3M to release its patent for N95 respirators, direly needed to protect against COVID-19, with the Governor remarking that “the procurement (of the respirators) is incredibly difficult, as is the manufacture because it’s under patent.” The US Federal Government even decided to invoke the Defense Production Act to ensure hassle-free procurement of the N-95 respirators, which indicates the strain that patent protection imposes on accessing such non-vaccine products. In the same vein, South Africa and India have deduced that firms refrain from producing patented products such as medicines and medical equipment due to imminent threats of infringement lawsuits. Once the waiver is announced, capable firms will proactively search for a reliable supply of components and deliver patented goods that can improve any nation’s chances at preventing and treating COVID-19 infections. Although a waiver offers extensive leeway to domestic and exporting firms in production of medical relief, there are very real obstacles to its acceptance at the WTO. The waiver requires consensus of all member-states, but currently, developed nations are opposed to its approval. US backing for the waiver offers some respite, however its support is only for “waiver of COVID-19 vaccines” and not the non-vaccine products mentioned in the India-South Africa proposal. Even if developed countries agree to negotiate on the text, we may witness dilution of the proposal into a toothless resolution that fails to generate the necessary upscaling of global production. Moreover, the upcoming meeting of WTO member-states is scheduled in December and such delays could impede a timely resolution. To conclude, the non-vaccine component will become a highly contested issue as deliberations on the IP waiver intensify. Ongoing criticisms against the waiver are not applicable to non-vaccine products. The compulsory licensing mechanism is unsuitable for these products, and technology transfer as well as deficient supply chains pose significant obstacles once a waiver is granted. The ultimate goal is saving lives, any other contradicting interest is — as TA Ghebreyesus says, morally indefensible, epidemiologically self-defeating, and clinically counterproductive.

About the author: Rhia Mehta is a contributor to Travaux. She is pursuing her LL.M. degree at Berkeley Law. Photo available here. A triangular portion of the continental shelf extending into the Indian Ocean through the borders of Somalia and Kenya, allegedly a treasure-trove of oil and gas, has been a subject of dispute between the two nations for the past four decades. In 2009, the nations decided to resolve the dispute through negotiations, as enlisted in the Memorandum of Understanding entered into by them. When talks fell through in 2014, Somalia escalated the dispute for resolution before the international forum in the Hague. On October 12, 2021, the International Court of Justice delivered its judgment on the dispute, finally delineating the maritime boundary. The methods used by the International Court for this purpose, also sought to be crystallized as the standard procedure to be applied when determining maritime boundaries in resolving international disputes, favored Somalia’s proposal. Undoubtedly, the judgment was received with great jubilance by Somalia. Additionally, it has also assumed great importance within the political realm of the country, with President Mohamed Abdullahi Farmaajo placing the judgment on his mantle to receive political gain. In contrast, Kenya has accused the ICJ of bias and refused to afford any recognition to the judgment. After participating in the proceedings up until the submission of all written pleadings, Kenya, as late as in 2021, intimated the ICJ of its refusal to make oral arguments. Initially, Kenya attempted to cite the COVID-19 pandemic and its consequent impediments, including poor internet connectivity in Nairobi, as reasons to avoid a virtual hearing. However, when nine months later Kenya notified the United Nations (UN) Secretary-General of its decision to withdraw its declaration under Article 36(2) of the ICJ Statute, it was clear that Kenya (a) anticipated an unfavorable ruling; and (b) had no intention of abiding by it. This assumption was subsequently confirmed by Kenya’s reaction rejecting the judgment in toto. Given Kenya’s reaction, it appears that the finality of the ICJ’s judgment does not determine the end of Somalia’s struggle to enforce its claim over the disputed waters. The ICJ’s judgment may be binding, but it is not enforceable. Somalia will have to seek the UN Security Council’s aid in enforcing the judgment, as per Article 94(2) of the UN Charter. It is also in Somalia’s favor that Kenya has domesticated the Statute of the International Court as well as the UN Charter by adopting them into its Constitution, stating the “general rules of international law” as “the law of Kenya.” However, the availability of the aforementioned legal resorts do not appear to deter Kenya from its active defiance of the judgment. Kenya has publicly vowed to protect its “inherent right” to “its territory” by way of pursuing “all available means.” At this juncture, it is pertinent to recollect that Kenya has only recently upgraded its naval base near the disputed waters to a full military base. Further, it is Kenya’s declared belief that enforcement of the judgment will lead to a hazardous strain in the relation between the two nations. Kenya’s outright refusal to abide by the judgment is further confirmed by the nation’s withdrawal from the ICJ under Article 36(2). Pertinently, in 1965 Kenya had submitted the five circumstances which could attract the ‘compulsory jurisdiction’ of the ICJ; the present case fell squarely within these circumstances. Regardless, Kenya alleges that the ICJ neither had the jurisdiction nor the competence to preside over the resolution of this dispute. The defying nation has even gone as far as attacking the morality and integrity of a presiding Somalian Justice of the ICJ, also an author of the judgment, citing an alleged bias in favor of his nationality. The purpose of this article is not to gauge the merits of Kenya’s actions but to decipher from them the sliding significance and status of the ICJ. Kenya’s actions in the present case evince a nation’s obvious response to contemporaneous ‘fight or flight’ situations. The present is a clear demonstration of nations pledging their allegiance to the concept of global unity and integration by putting themselves under the international community’s scrutiny. However, when its application is put to the test, in contests involving the nations’ personal interests, the nation will often choose its own interests, citing sovereignty, whilst unhesitatingly undermining all its previous textual commitments to international unions and authorities.

About the author: Selen Kazan is a Ph.D. student at the Graduate School on Political Cohesion and a Research Assistant at the TU Dortmund Institute for philosophy and political science. Her work focuses on the impact of Transitional Justice in democracies based on the Canadian Truth and Reconciliation Commission. She is currently at the University of Toronto’s Law Faculty for her field research. "Every Child Matters Orange Shirts on British Columbia Legislature Building Steps, Symbol of Canada National Day for Truth and Reconciliation" by Autumn Sky Photography, available here. The discovery of unmarked mass graves of Indigenous children near former Indian residential schools in Canada gives rise to questions of unfulfilled promises and reconciliations. These residential schools were government-sponsored schools run by churches that aimed to "kill the Indian in the child," by forcibly assimilating the children, and converting them to Christianity. An estimated 150,000 children attended residential schools. By using ground-penetrating radar technology, many Indigenous communities across Canada continue to look for unmarked graves near the almost 130 schools. Chief Rosanne Casimir of the Tk'emlups te Secwepemc First Nation complains that Indigenous communities are shouldering the responsibility to prove true Canadian history. The Canadian Truth and Reconciliation Commission (TRC) operated from 2008-2015, and was created to investigate residential schools and their missing children, and to support survivors by providing them with a platform to share their stories and address their intergenerational trauma. Due to incomplete historical records, the exact number of persons killed in the residential school system remains unknown, but estimates vary from 3,200 to more than 6,000. These new findings and calls by Indigenous communities for accountability necessitate a legal reassessment. Final Report The TRC’s final report found that Canada perpetuated a cultural genocide. Although this finding was technically an admission of guilt by the TRC, the group did not explicitly determine whether a physical and biological genocide occurred, as this determination would have legally implicated the Canadian government. Rather, the final report’s introduction is adamant about distinguishing the boarding school system and other human rights abuses that took place inside the schools from a physical genocide, which it defines as "the mass killing of the members of a targeted group." Cultural genocide, on the other hand, is defined as "the destruction of those structures and practices that allow the group to continue as a group," and is carried out by seizing native land, and by prohibiting Indigenous languages and spiritual leadership. The main element of cultural genocide is the transgenerational aspect: the forceful separation of children from their families and sending them to boarding schools resulted in the disruption of transmitting cultural values to the next generation. The schools aimed to remove Indigenous children from the scope of their parents’ influence. Sir John A. Macdonald, Canada's first prime minister, publicly acknowledged this goal in 1883. Cultural Genocide in International Law While the residential school system is increasingly depicted as genocide by scholars, the specification of what kind of genocide occurred is still not settled. Cultural genocide is still a contested legal term and issue because of political constraints. Raphael Lemkin, who coined the term "genocide," believed that genocide did not only refer to the immediate destruction of a national group but rather a “coordinated plan of different actions aim[ed] at the destruction of essential foundations of the life of national groups.” These new findings in Canada and the oppression of Uighurs in the Xinjiang province in China have sparked a renewed discussion in human rights circles on cultural genocide. However, a proposal to codify the concept of Cultural Genocide as Article III in the UN Genocide Convention (UNGC) in 1948 failed. Proponents of the proposal argued that cultural genocide essentially represented the ultimate goal of genocide, and physical genocide was just one means to achieve it. However, the majority contended that the physical destruction of a group could not be placed on the same level as, for example, the prohibition of a language. The primary purpose of the genocide convention was to codify genocide as an international crime to ensure future accountability, and, ultimately, cultural genocide was seen as too vague in nature. Including it would have also meant criminalizing many of the framers’ own behavior. For example, the Canadian delegation was instructed, via telegram from the Secretary of State, to vote against the Genocide Convention as a whole if cultural genocide were to be integrated. Following the removal of the cultural genocide clause, Canada signed the UNGC in 1949. Nevertheless, the concept of cultural genocide per se was not dismissed because the actus reus in Article II (e), the "forcible transfer of children to another group," which was seen as both a cultural and physical genocide, was still included. The Law on Genocide in Canada Legislators in Canada were adamant about incorporating the UNGC into Canada's criminal code, as they asserted that genocide could not be allowed to occur there. The Canadian Cohen Committee, following the advocacy of the Canadian Jewish Congress, wanted to define genocide for Canadian law more narrowly than the UNGC, to only include killing and substantial equivalents. The Committee advised Canada to not adopt the other components including those prohibiting causing bodily or mental harm to members of a group and forcibly transferring children from one group to another group with the intent to destroy the group. The Canadian Criminal Code recognizes only parts of the UNGC. For example, legislators included the Genocide Convention in the section on hate propaganda rather than as a stand alone clause. They justified this change by claiming that most components of the international definition, such as the forcible transfer of children of one group to another, were inadvisable for Canada. Legislators also purposefully omitted Article II (e) of the convention and argued that it could implicate the Attorney General of British Columbia's transfer of Doukhobors children to boarding schools. Similarly, they left out Article II (d) with a bizarre argument that it could result in pill or contraceptive manufactures criminal liability in the future. This omission resulted in the Canadian government’s impunity regarding the forced sterilization of Indigenous Peoples in residential schools and hospitals, which was common practice in Alberta and British Columbia. Only after legislators enacted the Crimes against Humanity and War Crimes Act (CAHWCA), which implements Canada's obligations under the Rome Statute of the International Criminal Court, did they incorporate the genocide convention. However, this still does not mean that the entire UNGC is entirely applicable for Canada. Whereas one may be prosecuted for crimes allegedly committed outside of Canada “either before or after the coming into force" of the CAHWCA and, indeed, the Rome Statute, no such wording exists regarding international criminal acts committed within Canada. Canada's selective incorporation of the UNGC into its own criminal code thus precludes claims that could fall under forcible child transfer Article II (e). A slow Canadian genocide The TRC's final report also acknowledges that the Canadian legal landscape has made it challenging and traumatizing for survivors to receive an adequate response to their claims. Many survivors referred to the residential schools system as a genocide. At the same time, the TRC continues only to use the term "cultural genocide" to avoid a legal debate that could include the applicability of the UNGC. However, many survivors also stated that the debate about whether a cultural or physical genocide occurred distracted from the real issue at hand, and that child transfer is indeed recognized as an offense under the UNGC. Further, the National Inquiry into Missing and Murdered Indigenous Women and Girls' (NIMMIW) supplementary report on genocide also deems this debate as misleading for the Canadian context. It claims that the Indigenous perspective has been left out in outlining international norms, which were drafted by sovereign states that benefited from their exclusion. It also added that no matter which offense is chosen - cultural or physical genocide - both terms encompass Canada's past and ongoing actions and omissions toward indigenous peoples. Not only was their culture lost for several generations, but many children died in the residential school’s care. Similarly, the focus on genocide in the context of war, for example, in the Holocaust, the Rwandan Genocide, or the massacre at Srebrenica, leaves out the possibility of a "slow" destruction of a group. The NIMMIW, therefore, prefers the term colonial genocide, which encompasses this slow-moving process. It argues that the intent to destroy Indigenous peoples in Canada was implemented gradually and erratically, utilizing several tactics against various Indigenous communities. Further, the NIMMIW determined that the Canadian government engaged in the use of lethal and non-lethal force, which all fall under the purview of the crime of genocide. The difference in this framing to the better known notion of genocide is that the policies fluctuated in time and space, and, to some extent, are still ongoing, but are not a single quantifiable event. It clarified that the Canadian genocide is a "composite act,” or, an act that "breach[es] an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful" pursuant to Article 15 of the ILC Articles on State Responsibility (ARS). Multiple problems arise regarding the intertemporality because, as stipulated in Article 13 of the ARS, the state must be bound by the obligation in question when the act occurred. Classifying the acts committed by Canada as a composite act also does not satisfy this element, because Article 15 also adheres to the intertemporal principle. The NIMMIW does not give a definite start date of genocide and claims that it is still ongoing. Their first examples of genocidal acts stem from the 1700s, and include the residential school system. During that time, the crime of genocide was not recognized internationally. The commentary on the ARS states that if the relevant obligation did not exist when the act occurred, subsequent omissions occurring after the obligation came into existence will be internationally wrongful. Additionally, the residential school system continued well into the 1990s, after the UNGC was already in force. Conclusion Though the TRC concluded that the residential schools were part of a cultural genocide, experts have yet to reach a conclusion regarding whether a physical genocide occurred. Canadian law is not designed to allow Indigenous Peoples to seek redress at home and address the residential school system's injustices thoroughly in a legal sphere. The Calls to Action of the TRC’s final report indeed called for the investigation of burial sites and missing children and pledged to bring the children home. The distinction of whether a physical or cultural genocide occurred will not change the gruesome history of the Residential Schools, but it could better tell the genuine truth, and offer accountability.

About the co-authors: Shreya Tripathi is a fourth-year student at Maharashtra National Law University in Nagpur, India and Rakshit Sehrawat is a fourth year student at Gujarat National Law University in Gandhinagar, India. Photo available here. “You don't have to be an epidemiologist to realize that infectious diseases make their own preferential option for the poor-they afflict them more, and worse.”-Paul Farmer Introduction On March 11, 2021, the UNHCR estimated that 57 state borders were completely shut, and 81 states had restricted cross border movement. In April 2020, an estimated 39% of the world’s population was living in states with borders open only to citizens and residents. These mobility restrictions brought on by Covid-19 have inconvenienced ordinary people, but for refugees, the inability to move between borders has decimated livelihoods. To be considered a refugee, a person must have crossed an international border. This definition is well settled by virtue of Article 1(A) (2) of the Refugee Convention, and is supplemented by the mandatory principle of non-refoulement encapsulated under Article 33(1) of the 1951 Convention. This article affirmatively obligates states not to forcibly return refugees to their countries of origin whilst the risk of persecution persits. Thus, for persons to legally become refugees, mobility is essential. Though individuals and groups escaping persecution have been granted protection by states for millennia, in order to officially be “refugees” instead of “migrants,” such people must meet the UNHCR requirements. A person who fails to qualify as a refugee because they have not crossed an international border may instead be classified as “internally displaced.” There is a marked distinction between the two. The International Committee of the Red Cross, considers refugees to be “people who have crossed an international frontier and are at risk or have been victims of persecution in their country of origin. Internally displaced persons (IDPs), on the other hand, have not crossed an international border but have abandoned their homes for whatever cause.” Thus, it is evident that the two terms are not synonymous and carry a different set of legal consequences. Internally displaced persons are more likely than refugees to become stranded in conflict zones, caught in crossfire, and are at peril of being exploited as pawns, targets, or human shields by belligerent parties. Displaced persons die at far greater rates than the regular population, and they are routinely deprived of proper housing, food, and medical care. Women and children make up the vast majority of internally displaced people, and they are particularly vulnerable to violations of their fundamental rights. Economic Hardship of Refugee: A Humanitarian Crisis One of COVID-19’s most serious ramifications for refugees is its economic consequences. “I can barely make ends meet. Whatever little employment I had by way of part time jobs has ceased.” “Even if I die, no one from my community would have funds to arrange burials for me.” These are just a few of the Rohingya people’s experiences, a group severely affected by the economic crisis. The financial crunch in the aftermath of the pandemic has drastically affected the economic life of refugees. According to a survey by the Norwegian Refugee Council, more than three quarters of the refugee population has been rendered jobless by the pandemic, around 70% of the population is surviving on two square meals per day, and a majority of school-aged children dropped out of school to save money. Furthermore, according to the UNHCR, approximately 74% of households in developing countries housing the majority of the refugee population are meeting half or less than half of their basic needs due to extreme poverty caused by restricted access to traditional labour markets and the collapse of the informal economy. The problem worsens for refugee populations dependent upon daily wage earnings. According to the United Nations’ Food and Agriculture Organization (FAO), refugee households dependent on daily-wage earning are among the groups most vulnerable to losing jobs due to the pandemic because many lack secure employment contracts. The enormous funds earmarked for COVID-19 prevention by international organizations and humanitarian agencies have resulted in money being diverted away from refugees, many of whom had become highly dependent on direct government subsidies. Due to restricted access to economic resources, some refugee communities are on the verge of starvation and malnourishment. Economic hardship on Entrepreneurs Covid-19 containment measures, restrictions on freedom of movement and lockdown moves have sent shock waves through the refugee population engaged in micro, small- and medium-enterprises (MSMEs). Lebanon is one such place where deteriorating economic conditions have ruined the entrepreneurship sector due to limited access to finance, property, and requisite resources in small scale business. Limited Access to Social Protection Schemes In many countries, social protection measures have come as a respite to deteriorating financial conditions amidst the pandemic. However, data suggests that refugees have very limited access to social protection schemes such as sick leave, access to income support, and health insurance. Refugee Laws: Where lies the Fault? The refugee population’s present precarious economic condition raises a question: Does the normative international framework of refugee protection provide remedies for the protection of refugee rights in emergency situations? In an attempt to answer this question, this article looks to various provisions of human rights bodies. Articles 7, 18 and 19 of the 1951 Convention establish three provisions relating to the right to work, right to wage-earning employment, and the right to self-employment. Article 17 of the Convention casts a mandate on the contracting states to provide “sympathetic consideration”,granting all refugees equal treatment with nationals. These provisions are further supplemented by other international instruments, such as Article 23 of UDHR, Article 6 ICESCR and the ICCPR, all of which contain non-discrimination clauses with an attempt to provide “everyone”, including refuges, the right to work, and the free choice of employment without distinction. The Committee on Economic, Social and Cultural Rights urges states to adopt special, targeted measures, including through international cooperation, to protect and mitigate the impact of the pandemic on vulnerable groups such as refugees. Some human rights treaties, such as the CRPD, “call for strengthening protection in times of crisis.” Hence, the International Human Rights framework is sufficient to safeguard the economic rights of refugees in emergency situations. The fault lies not with the normative framework of laws but the approach adopted by States. The States perceive the refugee problem as a political and economic agenda of politicians instead of looking at it from the perspective of a human-crisis approach. For instance: in South Asia refugee populations become targets of minority-religion driven hatred and are denied humanitarian assistance. Another classic example is South Africa, where the refugee protection issue is embroiled with the issues of national security, economic propensity, racial or cultural integrity, and the resistance to refugee protection is increasingly mobilized for political purposes. Thus, the politicization of the refugee phenomenon puts at bay the humanitarian management of this and other crises, thus leading to flagrant human rights abuses. A novel and human rights centric approach is required to deal with the precarious economic condition of refugees in emergency situations Progressive Measures Present A Way Forward 1. A More Inclusive Refugee Definition: The 1951 Convention grants people refugee status on the basis of race, religion, nationality, membership of a particular social group, or for their political opinion. But this definition is restrictive in its scope. As refugee protection is a core humanitarian issue, the definition should include those implicated by natural calamities, epidemics, or human rights abuses, as grounds to afford protection to refugees in a real sense. A lot has changed since 1951, and new displacement contexts call for new approaches to refugee rights. Experts have warned that Climate Change will create the world's biggest refugee crisis with serious economic, political, and social ramifications. Since the Convention’s definition of the term “refugee” does not accommodate a growing population of people who have experienced displacement and loss of livelihood and resources due to climate change, food insecurity and natural disasters, this inclusive definition will broaden the refugee protection by securing their human right of right to live a meaningful life with decent standards of living. 2. Enforcing the Wilton Park Principles: Built on the concept of shared responsibility and multi-stakeholder participation, this framework encompasses five mutually reinforcing principles that aim to enable participation in economic affairs and foster growth by providing impactful and innovative financing. The core principles are: (a)Work through national and local systems; (b) Support host communities and build social cohesion;(c) Enable economic participation and stimulate growth; (d) Provide impactful and innovative financing. These principles focus on two major potential actors for refugee protection: firstly, the State and secondly, Refugees themselves. Devising a parallel functioning of both the national and local bodies, the principles aim to respond better to current needs, be resilient to future crises and ensure sustainability. Furthermore, by recognizing Refugees as a potential human capital rather than merely as a passive recipient of humanitarian aid, the principles aim to bring a novel concept of refugee employment to ensure economic participation and refugee growth. For example, Subsidised Temporary Employment Programme (STEP), an initiative to generate jobs for Syrian refugees and Lebanese workers in Lebanon. 3. Improve Data and Evidence Collection: Often, the data of displaced populations are conflated and skewed which makes global implementation of beneficial measures ineffective. Thus, a detailed and properly documented database could make the universal implementation of refugee protection measures more effective. 4. Enforcing the Global Compact on Refugees (GCR): The Global Compact on Refugees (GCR) is a framework for more predictable and fair responsibility-sharing, recognizing that a long-term solution to refugee crises requires international cooperation. It lays out a roadmap for governments, international organizations, and other stakeholders to follow in order to guarantee that host communities receive the required assistance, and that refugees may live productive lives. It has four-fold objectives: To ease the pressures on host countries; To enhance refugee self-reliance; To expand access to third-country solutions; To support conditions in countries of origin for return in safety and dignity. Built on the edifice of shared responsibility and burden sharing, the GCR provides protection-sensitive arrangements, Age, Gender and Diversity (AGD) approach as well as regular monitoring and accountability steps will help to fill the crucial gap between adoption and implementation of refugee protection measures.

About the author: Angela Chen (J.D. Candidate, Class of 2024) is a Contributor to Travaux. Her interests center on critical, deconstructive, and decolonial approaches to international law and international relations theories. Angela holds B.A. degrees in Political Science and Philosophy from the University of Chicago, and an M.Sc. degree in International Relations from the London School of Economics and Political Science (LSE). She is a native speaker of Mandarin and proficient in French. "Huawei Office Building" available here. Hostage Diplomacy and UNGA Exchanges On September 24, 2021, Huawei’s chief financial officer, Meng Wanzhou, and the US Department of Justice entered an agreement that allowed Meng to return to China after being on house arrest in Vancouver for charges of conspiracy to commit bank fraud, bank fraud, conspiracy to commit wire fraud, and wire fraud. Shortly after Meng’s release, China released Michael Kovrig and Michael Spavor from custody; the Chinese state had arrested and held them as hostages against Meng’s release. They have all returned to their respective home countries as of this writing. While this episode of high-level “hostage diplomacy” merits lengthy discussion in its own right, this article uses this episode to interrogate the discourses on both sides surrounding hostage diplomacy. Specifically, this article examines the exchanges between Chinese and Canadian representatives at the 76th Session of the General Assembly of the United Nations, where both sides presented their respective countries as loyal advocates of international law. This article then discusses the interplay of international law and power politics, as well as the state of international norm diffusion today. International law is not merely epiphenomenal to great power contestations; rather, it actively shapes the discourses and behavior of states, socializing states into a growing epistemic community. Finally, this article will address the limits and discontents of international norm diffusion, as illustrated by China’s socialization into international law. In his speeches at the UN General Debate, the Chinese delegate accused Canada of “wantonly disregarding facts and laws.” Meng’s arrest was alleged as a “completely political matter” that had no “basis of law,” meant to suppress the development of Chinese technology. The arrests of Kovrig and Spavor, on the other hand, were “based on laws and facts,” and were therefore of a different nature from Meng’s arrest. The Canadian delegate’s response described Meng’s arrest as an “application of both Canadian and international law.” The rule of law vitiated every aspect of the Canadian authorities’ treatment of Meng; Meng was said to have thanked the Canadian court and government for “upholding the rule of law.” Kovrig and Spavor, according to the Canadian delegate, did not benefit from a comparable degree of rule of law. The Politics of International Law and the Law of International Politics What is intriguing about their exchange is their invocation of the (international) law; the form of such invocation is the same while its content is oppositional. Both sides presented their respective countries as upholding the law and the other side as tarnishing it. In the Chinese delegate’s speech, the positionality of law and politics is also curious: law is framed as discreet and oppositional from politics. Such framing of the relationality between law and politics carries a realist valence. According to (neo)realism, international life is anarchical and perpetually plagued by power struggles. Institutions such as international law are merely epiphenomenal to international politics, as they only reflect the interests of great powers. Great powers adhere to these institutions because they were the ones that created them in the first place; the institutions therefore necessarily guarantee their interests. From this lens, China’s and Canada’s discourses on upholding international law merely cloak their power-thirsty interests and intentions. Does this somewhat mechanistic view of state behavior explain the centrality of international law in China’s and Canada’s discourses surrounding “hostage diplomacy”? Not really. Indeed, the (neo)realist view takes state identities and interests as somehow pregiven and stable over time; it also elides the essentially social nature of state interactions. States are socialized and identities can be learned (and unlearned)—as a seminal figure in constructivism, Alexander Wendt argues, “anarchy is what states make of it.” Socialization and Its Discontents In the constructivist view, rules and norms such as international law serve to socialize states, shaping state identities and interests. Finnemore and Sikkink famously postulated the process of international norm diffusion and socialization: norm influence consists of three stages, which are “norm emergence,” “norm cascade,” and internalization. Norm entrepreneurs first persuade a “critical mass” of states to embrace new norms; then the norm leaders socialize other states to become norm followers in a process of “norm cascade.” Eventually, norm internalization occurs; norms take on a “taken-for-granted” quality that makes states’ conformity with the norms almost automatic. For the purpose of argument, we can assume that China has been socialized into international norms to a lesser extent than Canada, as the latter was one of the founding members of the “liberal international order” that gave rise to the prevailing international norms. If so, what does international law’s centrality in China’s discourses on hostage diplomacy suggest about China’s socialization into international law and norms? To answer this question, a further distinction between institutional and normative socialization is needed. David Shambaugh posits that socialization involves two stages: in the first stage (institutional socialization), a state complies with existing norms out of a “conscious, instrumental calculation.” The state adopts international norms not out of its belief in those norms, but because doing so would allow it to reap the benefits of integration into the international community. In the second stage (normative socialization), a state has deeply internalized the norms, and complies with them because the internalization has successfully transformed the state’s identity. In this stage, a “valued-based orientation” has occurred, and the state has gone beyond rational cost-benefit analysis in adhering to international norms. China has not been completely socialized into international law and norms, institutionally or normatively. The partial success of its institutional socialization is evident in its invocation of international law in the UNGA speech. Nonetheless, the discrepancy between international law’s requirements on sovereign states and China’s practices is manifested in China’s increasingly muscular foreign policy approach, exemplified in its stance on territorial disputes in the South China Sea. The lack of success in socialization, and the limit of normative socialization in particular, stem fundamentally from China’s distinct political culture (despite the reifying, essentializing tendency of the notion “culture”) and its discomfort with Western liberal values. Conclusion International norm diffusion and its discontents in the case of China also raise a crucial question: to what extent is international law truly “international”? In its failure to accommodate states with different cultural and historical experiences, international law risks becoming a mere representative of the “Western” experience. Therefore, while examining the mechanisms of international norm diffusion through “hostage diplomacy” has shed some light on the degree of the former’s success, delving more deeply into the limits of international law would open up further insight.

About the author: Devanshi Singh is a second year student at the National Law Institute University in Bhopal, India. Her areas of interest include international law, human rights, and ADR. "Stortinget, Oslo, Norway" by Dmitry Valberg, available here. On June 2, 2021, the supreme legislature of Norway amended the Marketing Control Act 2009, placing tighter restrictions on marketing involving photo editing. The amendment requires that any advertisements depicting retouched or manipulated body features be labeled with a standardized tag disclosing that the image was digitally altered. Once in effect, this rule will apply to social media influencers and any posts with paid promotions or advertisements across all websites. Research shows that digitally altered body features in advertising burden the public with body pressure and injurious perceptions. Norway’s expansive regulation is an improvement on other nations’ attempts at protecting consumers from these harms and should serve as a starting point for future legislation. Media and Self-Perception Society’s notions of beauty change swiftly, but the filters that society applies to fabricate beauty change even faster. In today’s digital era, where users constantly upload their activities on social media and receive an influx of others’ aesthetic notions and judgment, digitally altered features and photographs strike at the root of users’ insecurities. With significant leaps in technological advancements, it has become virtually impossible for users to readily distinguish between enhanced and unenhanced photographs. These modifications range from altering skin texture to changing body shape, culminating in a distorted image that prompts low self-esteem and unhealthy ideals. On the human front, digitally manipulated photographs have spurred intense social comparison and self-image issues, especially among younger people—the demographic most exposed to such content. These issues bleed into the commercial front; advertising touches countless lives, making the truth or lack thereof in marketing a pressing issue. This issue has caught the attention of several nations primarily because deceptive advertising can perpetuate unhealthy beauty standards and morph a viewer’s body image. Today, the pervasive nature of social media makes this phenomenon a part of everyday life. Body image encompasses one’s attitude, perception of their physique, and beliefs about society’s perception of their physique. Negative body image is a pressing issue in many nations. A 2015 study in the US revealed that 50% of female adolescents were unhappy with their bodies, with a steep rise to 80% by adulthood. Following the introduction of television in Fiji, the issue of eating disorders more than doubled from 13% to 29%, with a marked increase in bulimia and “feeling fat.” Researchers also found that 95% of individuals with eating disorders or harmful weight control activities are between the ages of 12 and 25, the age group most exposed to social media. People recognize edited photos only 60 to 65% of the time, inducing a rush to get cosmetic surgeries. Most of this stems from the pressure to conform to beauty standards, irreversibly impacting mental health. Therefore, those with great public influence, who have a say in what defines beauty, hold substantial responsibility. Moratorium on Manipulated Media Easy access to media and social platforms flooded with distorted photographs sparked debates on the blatant promotion of unhealthy body standards as early as 2006. The first country to take action against heavily manipulated media and unrealistic beauty standards was Israel, which implemented a law in 2012 requiring models to have a minimum BMI of 18.5 and relevant medical certificates, and requiring advertisers to provide clear markers in advertisements with digital alterations. In the US, Congress introduced the Truth in Advertising Act of 2016, which directs the Federal Trade Commission (FTC) to evaluate the degree to which digital alteration to individuals’ facial and bodily appearance in advertisements constitutes unfair or deceptive conduct. Labelling these practices as unfair or deceptive opens the door for monetary penalties. In 2017, France enacted the Photoshop Law, which states that commercial photographs containing models with digitally altered bodies must be accompanied by a “photographie retouchée” label. Norway’s amendment requires a similar disclosure but has a more expansive scope. These new regulations apply to social influencers, actors, and other celebrities, requiring them to disclose photographic manipulation in paid promotions and commercial ventures. Right to Expression: Infringed? Although regulating digital alteration in advertising offers substantial benefits, it may infringe on advertisers’ freedom of expression. International law generally provides a broad protection to the freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) recognizes freedom of expression as a fundamental human right “subject to certain restrictions” for the “respect of the rights or reputation of others, the protection of national security or of public order, or of public health or morals.” However, any limitations must be necessary, be proportionate, and relate directly to the purpose for which they have been prescribed. Individual nations more directly address the balance between freedom of expression and advertising regulation. Article 100 of the Norwegian Constitution guarantees the right to freedom of expression, but Sections 20 and 21(b) of the Marketing Control Act prohibit any form of commercial practice likely to influence children by playing on social insecurity, bad conscience, or poor self-confidence. In the US, the First Amendment protects the right to expression and is inclusive of artistic liberty and social commentary. However, the FTC requires advertisements to be truthful, and applies a stricter standard when potential fraud and deception affect consumers’ health. In Argentina, Article 4 of Consumer Protection Law 24,240 states that the information provided to consumers must be clear, truthful, and detailed. In 2020, an Argentine senator introduced a bill titled “Legal Regime of Influencers” to expand the scope of Argentina’s digital advertising regulations to encompass social media influencers. In the UK, the Code of Broadcast Advertising (BCAP Code) governs digital commercial posts. In April 2011, the UK Advertising Standards Authority (ASA) applied the BCAP Code when it ruled on two L’Oreal advertisements. The ASA ruled that L’Oreal made misleading alterations by airbrushing images in its adverts to exaggerate the performance of its products. Protecting public health and safety has long served as the rationale for advertising regulation. Multiple countries have blocked tobacco advertisements in television and print or mandated that they carry warnings to promote society’s interest in public health. In the private sector, advertisers have implemented “industry self-regulation,” which entails advertisers being mindful of potential consumer harm and refraining from propagating unhealthy practices through misleading terminology and visual aids. This same interest in protecting public health should be extended to advertising laws aimed at preventing the promotion of unhealthy weight, body, and skin standards. Balancing public health benefits with advertisers’ freedom of expression, mandatory labels for advertisements containing digitally altered photographs present the least intrusive solution. The Path Ahead As it stands, Norway’s new advertising regulations only address one branch of the tree of body dysmorphia and unhealthy standards. For any paid advertisement or collaboration, the promoter should be required to disclose specific modifications made to exaggerate the product’s features. The standardized tag is ambiguous and ineffective. A more effective policy could mitigate this ambiguity by requiring advertisers to add a link to their edited photograph that redirects the viewer to the original, unedited version. However, extending such a provision to apply to all edited photographs on the Internet, regardless of whether they are part of an advertisement, would violate users’ privacy rights and freedom of expression. Further, such an expansive restriction would push people to achieve unrealistic features through more detrimental means, causing more harm than the original issue created. Therefore it is necessary to limit the scope of this policy. Practicability is another potential issue with this proposal; each social media platform provider would have to train their algorithm to flag edited advertisements and attach the required label. However, the “false news” tags implemented by Instagram and Twitter appear to have bypassed this problem, suggesting that the necessary technology and infrastructure exist. International law must recognize the impact that social media has on society. While a convention on this issue may be far off, nations should look to Norway’s new advertising regulations as a policy with a broad scope that covers the numerous media outlets of today’s society. But this is not enough. Labels should do more than notify consumers that the advertisement is edited. They should link consumers to the original unedited version to contrast the advertiser’s output with reality. In combination, these proposals provide a blueprint for policy that can create a safer and healthier environment for all.

About the author: Maria Oliveira (J.D. candidate, 2024) is a Contributor to Travaux. She received her Bachelor of Arts in History from the University of Connecticut in 2021 and is interested in studying international and comparative law. "Secretariat Building at United Nations Headquarters" by United Nations Photo, available here. Introduction Since the fall of Kabul, the Taliban has been seeking legitimacy as the government of Afghanistan from the international community. In its campaign for international acceptance, the Taliban has tried to demonstrate that it is a reformed and more moderate organization and that its present regime will not be as harsh as it was in the 1990s. Dubious as these claims are, questions about the Taliban’s legitimacy need to be answered, especially as one of the Taliban’s agenda items is being allowed to represent Afghanistan at the United Nations (UN) General Assembly (GA). In November, the GA’s Credentials Committee will review the competing claims of the fallen Islamic Republic of Afghanistan and the Taliban’s Islamic Emirate of Afghanistan. The question before the Committee will not be about which government will be officially recognized as the government of Afghanistan, as only individual states can choose to recognize governments. Rather, the Committee will determine which government is qualified to represent Afghanistan at the GA, which will have significant implications for the Taliban’s ability to achieve the goal of international legitimacy. Because the Taliban has failed to implement any meaningful reforms, and in light of recent diplomatic exchanges with the Taliban that may increase its international legitimacy, it is crucial that the UN signal its rejection of the Taliban by not approving its credentials and by allowing the previous government’s representative to retain its seat provisionally. Taliban Reformed? In its bid for international legitimacy, the Taliban has pointed to a number of supposed changes in its policies that make its regime more moderate. Taliban spokesmen have repeatedly claimed that they will protect women’s rights to go to school and to work. They have also said that women will be appointed to government positions. Furthermore, the Taliban claims to be “inclusive” in that it will represent Afghanistan’s several minority ethnic groups. Yet it is blatantly obvious that such rhetoric has not been put into practice. The Taliban still has not opened middle and high schools for girls. If and when all girls are allowed to return to school, the Taliban’s strict gender segregation policy will perpetuate and worsen what is already one of the worst gender-based education disparities in the world, as only 16% of the country’s schools are girls-only, one-third of teachers are female, and 10-15% of female teachers are properly qualified. The Taliban has told working women to stay home and has replaced female employees for the Kabul municipal government with men. Female judges, lawyers, and activists fear for their lives. Women cannot leave their homes without a male chaperone. The Taliban has not appointed any women to its new cabinet. All of these actions demonstrate that the Taliban does not intend to represent women’s voices, and thus its reassurances regarding women’s rights are opportunistic signaling only designed to improve its international image. The same issue applies to the Taliban’s approach to ethnic minorities. Despite promising to form an “inclusive” government, its cabinet is dominated by old guard ethnic Pashtuns, with some minorities placed in less important positions. Yet the situation on the ground for Afghan minorities is bleak. The Taliban has targeted the Hazara minority group as it previously did in the 1990s. Amnesty International reported that in July the Taliban tortured and murdered several Hazara men. In August, the Taliban also executed thirteen Hazara individuals. Just last month, the Taliban forced hundreds of Hazara families out of their homes, stealing their land, crops, and stores. As long as this type of behavior endures, the appointment of token minorities in its “inclusive” government is simply another performative move to get the international community’s recognition. The Efficacy of the Taliban’s latest PR Scheme With respect to its mission of gaining international legitimacy, the Taliban has its work cut out for it as presently no country recognizes its regime. Still, its claims have made an impact, as demonstrated by the nature of China’s, Pakistan’s, and Russia’s diplomatic overtures to the Taliban. China says that the international community should approach the Taliban “in a rational and pragmatic manner.” In exchange for helping to “rebuild” Afghanistan, it would like the Taliban to reign in terrorism on its border. Pakistan, which was one of three countries to recognize the Taliban in the 1990s, wants to work on trade and border movement. It also has advocated for international engagement of the Taliban and for the Taliban to have a larger presence in regional affairs. For example, Pakistan argued that the Taliban should represent Afghanistan at the South Asian Association for Regional Cooperation (SAARC), which led the SAARC chair to cancel this year’s SAARC meeting. Russia, describing the Taliban as “very adequate people,” says it is putting the Taliban on “probation,” and would like to see if it can help reign in drug trafficking and extremism. Despite these friendly diplomatic invitations, these countries still approach the Taliban with hesitancy, and couch their overtures with messages about the need for the Taliban to respect human rights. China says that the Taliban should “demonstrate openness and tolerance,” and protect the interests of ethnic minorities, women, and children. Russia has stressed the importance of the Taliban’s government being representative of minorities. China, Pakistan, and Russia each recognize that a partnership with the Taliban could serve their interests in regional influence and security, but the Taliban’s lawless history and brutal reputation would make it imprudent to accept the Taliban outright. The Taliban’s claims to have reformed, therefore, make it easier for China, Pakistan, and Russia to engage the Taliban while saving face. As long as the Taliban’s rhetoric is “inclusive,” it will appear as though it is on the verge of moderation. China, Pakistan, and Russia purport that their engagements with the Taliban are a strategy to influence the Taliban to moderate and respect human rights—regardless of the Taliban’s brutality on the ground. Though China, Pakistan, and Russia do not recognize the Taliban, their engagements will start to cultivate a sense of international legitimacy. It is thus imperative that the UN not be complicit in cultivating the Taliban’s legitimacy. Rather, the UN should use the credentials issue as a measure to counteract the weight of some states' diplomatic engagements with the Taliban. The Issue Before the UN Per GA Resolution 396, there is no objective test to determine which authority is entitled to represent a particular state. Rather, the Credentials Committee must make its decision “in the light of the Purposes and Principles of the Charter and the circumstances of each case.” Thus, the Committee must make its decision in light of the UN’s commitment to human rights and democratic principles and the Taliban’s failure to support those commitments. The present state of the Taliban’s regime is in direct contrast to the UN’s commitments; thus it is extremely unlikely that the Committee will accept the Taliban’s credentials this session. To exclude the Taliban from the GA, there are three avenues available to the Credentials Committee that are supported by precedent: Accept the validity of the credentials of the fallen Afghan government. Defer making a decision on the credentials of either claimant, and leave Afghanistan’s seat empty. Defer making a decision on the credentials of either claimant, but allow the representative of the fallen government to remain provisionally. Though it is near certain the Committee will not accept the Taliban’s credentials, whether it will accept the credentials of the fallen government is an open question. Since the Taliban takeover, the Islamic Republic’s legitimacy has significantly declined. Both President Ghani and Vice President Saleh have fled to Tajikistan, and Ghani announced on Facebook that the Taliban had won. The diplomatic overtures of China, Pakistan, and Russia to the Taliban further erode any legitimacy the Islamic Republic may have. All of these factors, and the fact that both China and Russia are on the Credentials Committee, suggest that the Committee is unlikely to accept the validity of the Islamic Republic’s credentials and will instead opt to defer making a decision on the claimants’ credentials. The rationale behind not outright rejecting the Taliban would likely be to attempt to persuade the Taliban to change its ways. The UN Must Use Credentials Issue to Oppose the Taliban If the UN does not outright reject the Taliban’s credentials in an effort to get the Taliban to change, the UN may be waiting a long time before that hope is realized. Considering both the Taliban’s track record and its current actions, deferring a decision on its credentials is quite kind to them, and perhaps overly so. Although the Taliban has changed the way it talks, there is little reason to believe that it truly is willing to represent the people of Afghanistan. Even while trying to appear moderate, a Taliban spokesman stated that Afghanistan will have “no democratic system at all because it does not have any base in our country.” Thus, if the Committee chooses deferral, it still ought to allow the Ghani government’s representative to remain in Afghanistan’s seat provisionally. As opposed to leaving the seat empty, allowing a representative of the fallen government to remain in Afghanistan’s seat would make a stronger statement against the Taliban’s policies and put more pressure on it to reform.

About the author: Xiangyu Ma is a contributor to Travaux. Prior to joining Berkeley Law, he obtained his LL.B. degree from Wuhan University in China. Previously, he had worked with public and private stakeholders across different legal sectors such as PE, bankruptcy, dispute resolution, and infrastructure construction. He is particularly interested in the topics of comparative law, alternative dispute resolution, and European integration. Photo by Andrew Fackler, available here. On October 7, Poland’s Constitutional Tribunal concluded that the Polish Constitution takes precedence over some European Union (EU) laws. While this is not the first time that EU laws have been called into question by the courts of its member states, this decision is remarkable in its explicit challenge to the primacy of EU law and the Court of Justice of the European Union (CJEU), both of which serve as legal foundations for European integration. The ruling came about as a result of a request from Polish Prime Minister Mateusz Morowiecki in March 2021 to rule on the conflicts between EU law and the Polish Constitution. In its ruling, the Tribunal held that EU legislation and interpretations by the CJEU may cause Poland to “not function as a sovereign and democratic state” and that the Polish Constitution takes precedence “in terms of binding force and application.” In response, the European Commission reaffirmed that EU law takes precedence over national constitutional provisions and that national courts should accept the CJEU's authority regarding its interpretation of EU law. This controversial decision comes after Poland’s ruling Law and Justice Party (PiS) crippled Warsaw’s supreme judicial body through court cramming, legislative bombardment, and even refusal to publish judgments. However, despite these facts, EU law’s significant internal issues, including a striking competence dilemma and lack of democratic legitimacy, also contributed to the Polish Constitutional Tribunal’s decision. The Holding of the Polish Constitutional Tribunal The Polish Court’s ruling called into question the constitutionality of EU law primarily under two categories. The first is the validity of EU primary legislation. The Tribunal determined that Article 1 and Article 4(3) (commonly referred to as EU member states’ "duty of sincere cooperation") of the Treaty on European Union (TEU) are incompatible with the Polish Constitution, holding violate Poland's constitution and the established precedents of the Tribunal. In making its decision, the Tribunal disregarded Article 9 of the Polish Constitution, which states that Poland "shall respect international law binding upon it," Article 90(1), which delegates part of Polish authorities' competence to international organizations and institutions, and Article 91(2), which provides that international agreements, including EU treaties, take precedence over Polish statutes in the event of a conflict. Furthermore, the Tribunal disregarded its established case law resolving disputes between the Polish constitution and EU legislation. This includes K 18/04, which affirmed "the 2004 [EU] Accession Treaty’s compliance with the Polish [C]onstitution." As a result, this judgment lacks the legal rationale of a true judicial opinion and bears more resemblance to a political decision targeting the EU’s influence over Poland. Second, the Tribunal sought to invalidate the CJEU’s interpretation of EU law. The Tribunal disputed Article 19(1) of the TEU, which vests the CJEU with the authority to implement “uniform interpretation and application of EU legislation.” In Judge Piotr Pszczókowski's dissenting opinion, he claimed that the purpose of the Polish Prime Minister's request was to undermine the effects of specific CJEU rulings rather than to invalidate EU primary legislation. However, such a distinction between repealing EU primary law and the CJEU's ruling makes no difference, as both rationales undermine the very foundations of the EU legal order. The EU is founded on member states’ “shared values” and seeks to create “an ever closer union.” Given EU member states' diverse traditions, histories, and cultures, the CJEU is the central legal mechanism for accomplishing that goal. Preventing the implications of the CJEU’s ruling will likely cause the European integration process to stall, if not reverse itself. The Aftermath: Polexit and EU 2.0? Regarding the dilemma caused by the Polish Constitutional Tribunal’s judgment, Daniel Sarmiento argues that it is de facto “legal Polexit” to the extent that the PiS government implements it, resulting in “no integration through law, no reference to CJEU, and no judicial cooperation.” By contrast, Maximilian Steinbeis maintains that Poland will remain an EU member until the Polish government “pushes the TEU Article 50 button.” Merijn Chamon and Tom Theuns proposed a bolder approach, considering the possibility of a “collective withdraw[al] by the liberal democracies from the EU” under Article 50 of the TEU and establishing an EU 2.0 composed of states that abide by TEU Article 2. On the other hand, Maciej Krogel urges the public to “not evoke the ghosts of European disintegration by invoking the legal exit as a welcome solution,” particularly given that TEU Article 3(1) states that the aims of EU are “not only promote its values but also promote peace and wellbeing of its people.” And in times like these, the defense of the latter is critical if Europe is to avoid a new Cold War. Krogel’s assessment is wise. Allowing “Polexit” or creating an EU 2.0 at first appears to be an effective solution that severs troubled ties, but ignores the potential of a new Iron Curtain across the Continent. Such an outlook places unrealistic optimism in insulating authoritarian Member States in order to persuade or even compel them to recommit to EU core values. This strategy ignores the fact that isolation may also infuriate these countries, causing them to embrace authoritarianism even more recklessly. More importantly, it misses more fundamental questions: what is the EU legal order in nature, what problems arose from it, and can Polexit or EU 2.0 address them? A Castle in the Air: EU Law as International Law with Constitutional Characteristics The EU is an international organization by birth but has become highly constitutionalized through evolution. This reflects itself in the EU legal order, which is primarily based on two principles: the direct effect and primacy of EU law. The European Court of Justice (ECJ) held in Van Gend en Loos that the European Economic Community (EEC), the EU’s predecessor, constituted a new legal order of international law “the subject of which comprises not only the Member States but also their nationals.” This epoch-making decision retrospectively laid the foundation of the EU legal order on both states and their citizens, distinguishing it from international law which is based on agreements between sovereign states. Therefore, constitutionally, the legitimacy of the EU is founded in part on the democratic will of member states’ citizens and not just member states’ governments. Furthermore, in Costa v. ENEL, the ECJ held that EU laws could not be “overridden by domestic legal provisions.” However, as the effect of EU law permeates into domestic domains, jurisdictions between the CJEU and domestic courts, especially the constitutional courts, begin to overlap. This situation is often referred to as “Kompetenz-Kompentenz.” For instance, Poland’s Constitutional Tribunal had previously ruled that the CJEU had performed the same functions and wielded the same powers as the constitutional court. To address such a problem, the preliminary ruling procedure was established through TFEU Article 267. However, this procedure cannot resolve this conflict because of its theoretical and procedural flaws. TFEU Article 267 states that member states’ courts shall bring their cases before the CJEU if the interpretation of EU primary and secondary legislation is necessary for their judgment. First, this procedure draws no distinction between the constitutional and lower courts of member states in terms of their obligation of reference. As a result, lower courts may directly refer their cases to the CJEU without consulting national constitutional courts first, despite these constitutional courts’ higher rank in domestic legal orders. As a result, the preliminary ruling procedure vests the CJEU with powers subject to little domestic constitutional scrutiny. Second, the preliminary ruling procedure lacks an appeal mechanism. This leaves the requesting court of the member states with no option but to apply the ruling. Third, the CJEU has been greatly criticized in practice as it occasionally endangers member states’ constitutional structure. For instance, France in 2010 completed a constitutional reform aimed at putting the French Constitutional Council at the center of constitutional adjudication, excluding treaty review (including European Convention) by ordinary and administrative judges. However, the CJEU held that all national courts remain free to refer their cases to it, which diffused the French Constitutional Council’s assertion to first review the cases of ordinary courts. In response to the CJEU's constitutional threats, member states’ constitutional courts adopted the "Constitutional Identity Test." This test is more frequently used by several Member States as a veil for nationalist moves, particularly Hungary and Poland. The CJEU in Tarrico responded by reiterating “common constitutional traditions common to the member states.” As CJEU’s former Advocate General Poiares Maduro stated, the EU’s absolute respect for the constitutional identity of the member states “could lead to discrimination between the member states based on the contents of their respective national constitutions.” Combating nationalistic moves through “common constitutional traditions” is a manifestation of constitutional patriotism, a theory that aims to subscribe the identity of the individual living in liberal constitutional polities to the constitution rather than ethnicity through constitutional participation. However, the Polish Constitutional Tribunal’s ruling on October 7 explicitly demonstrates constitutional patriotism’s flaws. In recent years, the EU has done little to act on violations of EU fundamental principles (articulated by Article 2 TEU) by Hungary and Poland primarily because of its insufficient democratic legitimacy. The current competence crisis between the EU and some of its nationalist member states demonstrates that nationalism sometimes possesses greater power than universal values in terms of political mobilization and legitimacy. The EU legal order, which is built on a heterogeneous society, will undoubtedly face competence conflicts in the long run, and member states’ constitutional courts will continue to police their constitutional boundaries at their own discretion. Despite some constitutional courts preferring a more EU-friendly approach without striking down EU primary law, these courts’ legal rationales may still be abusively used by their colleagues in nationalist member states to further jeopardize the EU’s shared foundational values. Conclusion The EU is a major achievement not only for Europe, but also for human society, in establishing supranational political and economic unions. The EU legal order, in turn, serves as a valuable case study of legal pluralism. However, the Polish Constitutional Tribunal’s judgment casts a shadow over its future. This case is part of a growing trend for Member States’ national constitutional courts to resist the influence of EU law and the CJEU’s rulings. If the CJEU does not take radical steps to protect the EU’s shared founding values and the EU does not make sweeping reforms, the constitutional characteristics of the EU legal order will be damaged and diminished.

About the author: Sherry Shi (J.D. Candidate, Class of 2021) is a Travaux Contributor. Her interests include securities law, international trade law, and international political economy. Sherry holds B.A. degrees in Government and Economics from The College of William & Mary. Before law school, she interned at The Asia Foundation and Carnegie-Tsinghua Center for Global Policy. She is a native speaker of Mandarin and conversational in Japanese. "Rohingya" by AK Rockefeller, available here. Introduction On November 11, 2019, The Gambia filed a suit against Myanmar in the International Court of Justice (ICJ) for violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). Based on evidence reported by the UN Human Rights Counsel’s Independent International Fact-Finding Mission on Myanmar (IIFFMM) in September 2019, The Gambia alleged that Myanmar violated multiple obligations under Articles I, III, IV, V, and VI of the Genocide Convention through committing genocide, conspiracy to commit genocide, and failing to prevent and punish genocide. The allegations refer to the systematic “clearance operations” that Myanmar’s armed forces (the Tatmadaw) launched against the Rohingya people, the Muslim minority in Myanmar, in Northern Rakhine State in 2016 and 2017. According to the IIFFMM, the Myanmar military commenced the ethnic “clearance operations'' on October 6, 2016, following a minor attack on three Myanmar Border Guard Police by Rohingya militants. It ended these operations in February 2017, and resumed the ethic cleansing on August 25, 2017. The “clearance operations” were extremely brutal and devastating: satellite imagery analysis and survivors’ testimonies revealed that the military committed atrocities including but not limited to indiscriminate shootings, sexual violence, looting and burning of homes, and desecrating religious structures. Today, 980,000 Rohingya refugees who have fled the country from ethnic cleansing are seeking asylum in neighboring countries. The majority of these refugees reside in camps in Bangladesh. The Gambia, as a contracting party to the Genocide Convention, brought the suit under Article IX, which allows any contracting party to bring disputes “relating to the responsibility of a State for genocide” to the ICJ. On January 23, 2020, concluding that it prima facie has jurisdiction over the case, the ICJ granted provisional measures to prevent Myanmar from further persecuting the Rohingya. On January 20, 2021, Myanmar filed Preliminary Objections, which likely challenged the ICJ’s jurisdiction over the dispute, raising fundamental procedural questions. This step suspended the merit-based proceedings of the case and delayed Myanmar’s submission of its Counter-Memorial (a rebuttal to The Gambia’s claims) that was originally due by July 23, 2021. Alongside the proceedings of the case, several procedural disputes and political controversies have surfaced, adding uncertainties to the justice that the Rohingya have longed to receive. This article explores challenges and uncertainties that The Gambia faces and proposes several approaches that the international community should take. Provisional Measures: hope for the Rohingya or not yet? In the 36-page Application Instituting Proceedings and Request for Provisional Measures, The Gambia enumerates the Tatmadaw’s “sweeping genocidal acts” against the Rohingya, which are “intended to destroy the group in whole or in part.” Based on the evidence provided by the IIFFMM, The Gambia believed that Myanmar had no intention to stop the genocidal act, and that there were compelling circumstances that required the implementation of provisional measures to prevent further harm. Noting that “the Rohingya in Myanmar remain extremely vulnerable,” the ICJ granted the request, ordering Myanmar to take all measures within its power to prevent further genocidal acts and report the measures taken to the Court every six months until a final decision on the case is rendered. The provisional measures order marked a significant turning point in the case. Although not a final victory, it confirms the Rohingya’s status as a protected group under Article II of the Genocide Convention, highlights Myanmar’s legal obligations, and conveys the idea that a state unrelated to an issue can intervene as part of the global community, as long as it is a proper party to the Genocide Convention. The order, as well as the case itself, extends hope and relief to survivors of these atrocities. However, it remains unclear whether the provisional measures have been or will be effectively implemented. To comply with the Court’s ruling, Myanmar needs to report its compliance measures every six months, but these reports have been and will be confidential. The confidentiality bars the Rohingya and the international community from monitoring actual actions taken by Myanmar’s government. Because the Court did not point out specific measures that Myanmar has to undertake besides the general obligations in the Genocide Convention, it is possible that the Myanmar military will manipulate the confidential nature of the reports and circumvent responsibilities. On June 19, 2000, 30 Rohingya representative groups expressed their concerns regarding the implementation of provisional measures to the Court and requested publication of the report, but the Court did not respond to the request. Given that the default of the ICJ’s proceedings is to have reports available to the public, the Court should have provided reasonable justification for keeping Myanmar’s filings confidential, but it did not do so in the order. The Gambia did not file the case for its own interests, as the issue is not a bilateral dispute, but an effort to protect the public interest of the global community under the Genocide Convention. With the reports available to all, third-party states contracting to the Genocide Convention can assess the level of Myanmar’s compliance to the order and make strategies to join The Gambia in the suit. Therefore, considering the vulnerable status of the Rohingya and the case’s global significance in combating genocidal acts, the ICJ should have made the reports public. Myanmar’s Response: from “No” to A More Definite “No” On January 20, 2021, Myanmar filed preliminary objections to the ICJ, halting the merits proceedings of the case. The record is not published, but it is likely that Myanmar disputed The Gambia’s ability to bring this suit. In provisional measures hearings, Myanmar claimed that because it has no genuine disputes with The Gambia, the Court lacks jurisdiction under Article IX, which requires “[D]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide.” Although the Court found support for the existence of a dispute, Myanmar might further focus on the language of Article IX to undermine the Court’s jurisdiction and circumvent the suit. Is the filing of preliminary objections a strategic move to purposely delay or undermine the case? Given Myanmar’s previous responses to the suit, it is a definite possibility. After the provisional measures order, in February 2020, Myanmar shut mobile internet access down in multiple townships in Northern Rakhine State where the Rohingya constitute a majority of the population. The government lifted the shutdown after six months but only allowed 2G internet, hindering the global community’s access to information from Northern Rakhine State. Meanwhile, violence against the Rohingya never stopped even after the provisional measures were implemented. According to Burmese Rohingya Organization UK (BROUK), the Tatmadaw and Myanmar Border Guard Police committed multiple unlawful killings of innocent Rohingya villagers in the months after the ICJ issued the order. Because of restricted internet access, BROUK’s documentation of the killings only “represent a small fraction rather than a comprehensive account.” The real situation may be far more dire. Myanmar has refused to admit its military’s genocidal acts since the beginning of the lawsuit. In December 2019, Aung San Suu Kyi, who at the time was Myanmar’s de facto Prime Minister, appeared at the Hague to defend the Myanmar military, despite the fact that Suu Kyi has been fighting against the junta’s rule for decades. During hearings, she claimed that the ICJ should drop the case because the allegations were based on “unproven statements without the due process of criminal investigation.” While the democratic government failed to properly address the issue, the current military government could do worse. Following the Tatmadaw’s coup d'état on February 21, 2021, Rohingya refugees in Bangladesh expressed their concerns with the current junta as they have experienced the nightmare imposed by the military. Moreover, in claiming that Myanmar does not recognize the Rohingya, Tatmadaw leader Min Aung Hlaing affirmed their concerns. Although the coup itself does not affect the proceedings of The Gambia v. Myanmar, since the party here is Myanmar as a state, it is doubtful that the junta will comply with the provisional measures and keep properly defending the case. In Conclusion Given all these procedural and political uncertainties, whether the Rohingya will receive justice from The Gambia v. Myanmar remains a hard question. However, there are multiple ways for the international community to impact the case. First, there should be continued pressure on the Myanmar military to assure the transparency of information in Northern Rakhine State. Such pressure can include human rights sanctions and advocacy by non-state players. Second, third-party states contracting to the Genocide Convention should take initiatives to intervene in the suit, as the Maldives already did. Third, it is important that the UN Security Council take the difficult decision of referring the case to the International Criminal Court, where international law can hold individuals involved in the Tatmadaw’s “clearance operations” criminally liable. This case is central not only to the fate of the Rohingya, but also the international campaign against genocide as a whole. Therefore, state and non-state players should not hesitate to intervene to the best of their abilities while paying close attention to the plight of the Rohingya.

About the author: Sundar P. L. is pursuing his final year of law at Christ (Deemed to be University), Bangalore. He is deeply passionate about policy-making and has gained experience in subjects such as Cyber Law, International Law, Constitutional Law, Environmental Law, Competition Law, and Criminal Law. He has worked with governmental bodies and think tanks on various projects and is currently leading a committee on public policy and governance in the hope of executing institutional change. "Robot/Human love" by Louis Smith, available here. In 2017, Saudi Arabia legally recognized a robot named Sophia as its citizen, and Tokyo legally recognized artificial intelligence (AI) bot Shibuya Mirai as its resident, stirring debate over the jurisprudence of personhood. In light of the recent United Nations (UN) moratorium on the sale and use of AI systems, it is essential to develop an international legal framework to address states’ potential obligations to honor the citizenship status that other states confer on AI. Developing such a framework raises two critical questions. First, does existing international law allow an international framework to define citizenship? Second, what standards would such a framework use? The AI Moratorium May Drive Nations to Come to a Consensus on AI The AI market has grown exponentially throughout the 21st century. During this short timespan, AI experts have proposed numerous legal guidelines, including the Ethics Guidelines for Trustworthy AI, Asilomar AI Principles, and Civil Law Rules on Robotics, to minimize malicious manipulations of technology. Legislative bodies have begun to incorporate AI guidelines in regulations. For example, in April 2021, the European Commission moved to regulate AI under harmonized rules through the Artificial Intelligence Act. Despite these isolated movements towards AI regulation, a universal international framework governing AI treatment is still missing. Without universal or significant ratification, the aforementioned AI guidelines cannot qualify as conventional international law. The recent UN moratorium on AI could prompt nations to reach a consensus on AI treatment in several areas of law, including citizenship. For AI, an eminent subject with little international regulation, building an early consensus can save the international community enormous amounts of time and resources that would otherwise be spent on ex-post legal analyses. Analyzing the metrics and criteria that different nations value when endowing citizenship to AI could help us reach that legal end-goal earlier, which is essential for globalization in an era of open data. The Need for an International Framework that Grants Citizenship Status to AI It is a settled principle that legal personality is a requirement to receive diplomatic protection. If an AI device commits crimes in a foreign state, the home state may request that the foreign state hand over the AI for prosecution. This will likely invoke extradition treaties. To prevent international conflict, it is essential to evaluate the powers of a foreign state to effect a decision on an AI citizen that would not conform to the originating state’s decision. To provide clarity for such a scenario, it would help to examine existing internationally-recognized thresholds for conferring citizenship on an entity and obligations for a state to respect a person’s citizenship granted by another state. Applying Accepted Principles of International Law to the Current Scenario In the 1995 Nottebohm case, the International Court of Justice (ICJ) defined “nationality” as a legal relationship based on "a genuine connection of existence, interests, and sentiments." Nationality therefore reflects a genuine connection and formalizes the bond of allegiance. When such a genuine link or bond of allegiance is not adequately present, nationality may be terminated. Although the ICJ’s failure to establish exhaustive metrics for determining a “genuine link” of a national to their country was criticized in the Flegenheimer case, tests for establishing a “genuine link” have evolved over time. In Romano v. Comma, the Egyptian Mixed Court of Appeal held that the test of birth in the territory was adequate to prove a genuine link. This is in line with two established principles of international law: ”jus soli,” which deems a person a national of a state by virtue of their birth in that state, and “jus sanguinis,” which deems a person a national of a state by virtue of their descent from a national. Does the creation of AI technology in a state constitute its “birth” in that state, or does birth only apply to human birth in the context of citizenship? Article 15 of the Universal Declaration of Human Rights (UDHR) protects the right to a nationality and specifically applies to natural persons. The articles of this declaration were drafted to uphold human rights, not the rights of any entity imbued with artificial legal personality. Therefore, the right to a nationality is a human right under the UDHR, so failure to provide this right to an entity with artificial legal personality is not a UDHR violation. The “Civil Law Rules on Robotics,” adopted by the European parliament’s Committee on Legal Affairs, takes a different approach by examining robots’ potential legal duties when making autonomous decisions as “electronic personalities.” However, imposing duties on an entity as an electronic personality does not necessarily mean that the entity has an inherent right to citizenship. Similarly, corporations are “artificial legal personalities” with legal duties, but they are not treated as citizens due to the “corporate veil.” Conversely, the fact that AI holds rights and duties that differ from those held by natural persons does not negate the possibility of AI citizenship. Different classes of citizens in a state may hold different rights and duties if they are reasonably classified. Therefore, an entity’s legal duties cannot be the sole factor for determining citizenship status. Multiple sources of international law, such as Article 1 of the Convention on Certain Questions relating to the Conflict of Nationality Laws, Article 3 of the European Convention on Nationality, and the Nottebohm case, have established that “nationality” should ultimately be defined by states’ internal laws. However, they also also emphasize that a state’s power to confer citizenship status is limited and must be consistent with the principles of international law, leaving the door open for international guidelines that define citizenship for AI systems. The Way Forward An effective AI citizenship framework should consider additional factors like an entity’s agency and consciousness because they are indicative of its ability to form allegiance to a nation, which is the core of the Nottebohm ruling. Questions of agency and consciousness require comparisons between humans and AI. In the case of Saudi Arabia, Sophia is an AI device without a central nervous system. Unlike her human counterparts, Sophia has difficulty establishing a genuine mental consciousness to abide by a duty to the state, avail a right, and form an allegiance. While artificial neural networks have progressed, the genuine agency of AI systems in processing signals that are determined by manually drafted rules is questionable. Until now, the Turing test was arguably the most objective yardstick for measuring an AI system’s capacity to abide by a duty in the truly “human” sense. The test evaluated an AI system’s ability to mimic human responses, providing insights into a system’s capacity to “think” and perform acts and omissions that amount to their “duties.” However, recent discoveries of the human mind may justify using new tests that measure factors beyond mimicry, meaning that AI systems which previously passed the Turing test may lack the capacity to abide by a duty in a human sense. Developments in hardware and software in deep learning and neural networks show that states have not reached a consensus, domestically and internationally, on a standard for assessing an AI system’s ability to perform duties like a human. Conclusion Without adequate conventional or customary international law, states do not have any binding international obligation to honor citizenship status conferred on existing AI technology. It would be improbable for a significant number of states to reach a consensus on a particular objective threshold for establishing that an AI system has enough human abilities to qualify as a legal person, and thus, a citizen. Therefore, customary international law has a long way to evolve to reach a point where AI’s citizenship status is universally honored.

About the author: Julia Wang (J.D. Candidate, Class of 2024) is a Contributor to Travaux. Her interests include international trade and development, cultural heritage law, and intellectual property. Julia holds a B.A. in Economics and Art History from Rice University. Before law school, Julia served as a Peace Corps volunteer in North Macedonia and conducted policy research on issues relating to migration, education, and innovation. She speaks French, Mandarin Chinese, and conversational Macedonian. "Detail from the Elgin Marbles at the British Museum" by Chris Devers, available here. In its upcoming term, the US Supreme Court is once again tackling the question of restituting Nazi-looted art. The Court has granted certiorari to Cassirer v. Thyssen-Bornemisza Collection Foundation (TBC), which involves the family of a Holocaust survivor seeking the return of the Camille Pissarro painting Rue Saint-Honoré, Afternoon, Effect of Rain from the Spanish museum. This is not the first time the Supreme Court has addressed this issue. In Republic of Austria v. Altmann, the Court ruled that Altmann could sue the Austrian government through the US legal system to recover five Gustav Klimt paintings that the Nazis stole from her family, including a portrait of her aunt commonly known as The Woman in Gold. On the other hand, last year, in Federal Republic of Germany v. Philipp, the Court held that German Jewish art dealers’ heirs could not sue Germany through the US legal system to recover the Guelph Treasure. Restitution cases are numerous and complex due to the widespread looting of the Nazi regime. The Nazis established an elaborate state procurement system for looted art from 1933 to 1945. To fulfill his desire to construct a museum in Linz and fill it with the finest art in the world, Adolf Hitler formed the Einsatzstab Reichsleiter Rosenberg and mandated state plundering of other nations’ cultural property. Jews and people persecuted as Jews were the main looting victims in the German Reich and Nazi-occupied territories. The Nazis looted around 600,000 artworks, and an estimated 100,000 paintings are still missing. Therefore, it is imperative to think creatively about how states can use domestic and international laws to help their citizens recover artworks. One Domestic Approach to Looted Art Domestic laws can sometimes provide relief in attempts to recover stolen art. For example, the Foreign Sovereign Immunities Act of 1976 (28 USC §§ 1602–1611) plays a central role in US cases like Cassirer v. Thyssen-Bornemisza. While foreign states are generally immune from US jurisdiction, they are not entitled to immunity in cases under the “expropriation exception” in § 1605(a)(3), which expressly exempts certain cases involving “rights in property taken in violation of international law.” The statute also provides in § 1606 that where a foreign nation is not immune, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” In Austria v. Altmann, the Austrian government was not entitled to immunity because the case involved a taking of property that had violated international law. On the contrary, in Germany v. Philipp, the court ruled that the expropriation exception incorporated the “domestic takings” rule, which assumes that what a country does to its own citizens’ property within its own borders is not subject to international law. Since the German government had taken from its own citizens, the looting of the Guelph Treasure was not covered under the exception, and thus Germany was immune from US jurisdiction. Additionally, art restitution cases often have choice of law implications. Choice of law will have a substantial impact in the eventual decision of Cassirer v. Thyssen-Bornemisza. California law recognizes that even a “good faith purchaser can never acquire good title to stolen property.” Meanwhile, Spain’s adverse possession or “acquisitive prescription” laws effectively override this common law principle. By choosing to apply Spanish law, the Central District Court of California and Ninth Circuit found that TBC lacked “actual knowledge” that the painting was stolen, which was sufficient to allow TBC to keep the stolen artwork. It will remain up to the Supreme Court to decide whether California or Spanish law applies, which will determine the ultimate fate of the Pissarro painting. Why Domestic Protections Aren’t Enough Though the Foreign Sovereign Immunities Act may aid some in the US, not all domestic legislation grants the same protections. The widespread lack of effective restitution laws and difficulty in litigating restitution claims have largely impeded restitution efforts around the world. Many Western European countries established restitution measures soon after World War II (WWII), though these measures were often hindered by bureaucratic or legal constraints. For example, in 1946, Austria enacted the Annulment Act to invalidate all legal transactions that had resulted from Nazi political and economic ideology. However, exiled Austrians faced obstacles in requesting the return of looted artwork because a different provision of Austrian law prohibited the export of works that were important to the country’s cultural heritage. In Eastern and Central European countries, restitution efforts were much slower, largely due to the Communist regimes that came to power in each country and collectivized and nationalized private property before successful restitution schemes could be created. As a result, many Eastern European countries had to “catch up” with more comprehensive approaches in the 1990s and 2000s. International Agreements and Their Shortcomings Apart from their individual domestic laws, states have also come together to address the issue of looted art. International conventions that guide the protection of art and cultural property include the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and 1995 Convention on Stolen or Illegally Exported Cultural Objects. The UNESCO and UNIDROIT conventions remain the “key frameworks” that guide how institutions and legal bodies treat illegal art and antiquities. However, these mechanisms rely largely on individual states to effectuate restitution. The lack of effective enforcement and implementation on the national level and unpredictability in choice of law contribute to the substantial delay around the world in restituting Nazi-looted art. To counter the ineffectiveness of individual restitution efforts, countries have specifically addressed the issue of Nazi-looted art with moderate success. In 1998, forty-four signatory countries and thirteen NGOs came together to establish the Washington Conference Principles on Nazi-Confiscated Art. Their goal was to find “just and fair solution[s]” for descendants and heirs of people whose property was stolen. However, the agreement was vague and non-binding, since it did not include any enforcement mechanisms and largely left subsequent proceedings to individual states. For example, in response to the Washington Principles, Austria created the 1998 Art Restitution Law to effectuate restitution for artwork in public federal museums and institutions. However, even after its passage, claimants struggled to bring suit against private institutions, which were not covered under the law. Despite efforts to research and identify Nazi-looted art, lawsuits to recover works in Germany, Austria, and France have generally failed due to issues like statutes of limitations, rules that favor good-faith buyers, steep filing fees, and a lack of deaccessioning laws. In 2009, forty-eight countries gathered to create the Terezin Declaration on Holocaust Era Assets and Related Issues. This declaration emphasized the importance of private property restitution and/or compensation and called upon countries that had not yet done so to implement national programs to address Nazi-confiscated property. The 2009 Declaration, along with its 2010 companion guidelines and best practices, called for fair and comprehensive claims processes that do not discriminate based on citizenship or residency and that are expeditious, accessible, and unburdensome to individual claimants. Like the Washington Principles, this agreement was non-binding, and many signatory countries have either made little progress towards these goals or enacted policies that directly contradict these principles. Poland, which had by far the largest European Jewish community before WWII, has made Nazi-looted art restitutions practically impossible by truncating the statute of limitations on all challenges to allegedly stolen property in 2021. The law has led to the dismissal of thousands of cases that have been under litigation for years. Several other countries, including Croatia, Czech Republic, Lithuania, and Romania, maintain citizenship restrictions or other procedural hurdles that prevent non-citizens from submitting restitution claims, directly violating the Terezin guidelines. Still others, like Hungary and Russia, have done very little to conduct provenance research or to restitute or compensate for Nazi-confiscated art that had been recovered at the end of WWII. Conclusion Almost ninety years after Hitler came to power, many of the Nazi regime’s cultural crimes have yet to be resolved. The ineffectiveness of domestic restitution legislation and the lack of enforcement mechanisms for international treaties have resulted in an inconsistent patchwork of laws that make it difficult for countries and claimants to address these long-standing violations of international law. While public attention has increased on the issue of Nazi-looted art and several governments have begun investigations into provenance, many countries have resisted efforts to even identify looted art, let alone provide broader restitution solutions. Legal obstacles, such as good faith exceptions, statutes of limitations, and a lack of adequate recovery mechanisms, will continue to hinder many restitution claims if countries are left to their own devices. International organizations should take on the role of enforcement in order to truly fulfill international agreements like the Washington Principles and right these wrongs that were committed so many decades ago.