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About the author: Jessica Niewohner (J.D. Candidate, Class of 2024) is an Assistant Contributor to Travaux. Her academic interests focus on human rights law, both internationally and domestically, with a special focus on marginality and exclusion of women, incarcerated persons, and persons with disabilities. Jessica holds a B.A. in Law, Societies, and Justice, with a minor in human rights and political science from the University of Washington, Seattle. She is a former Disability Inclusive Development Fellow. "Primal Forest Bialowieza / Poland" by Rudolf Robak available here. Among the most fundamental human rights is the right to seek asylum in a foreign country to escape persecution. Yet recent news reports describing illegal pushbacks of migrants and refugees by the Polish government at its border with Belarus, as well as the response from the European Union (EU), raise important questions about the efficacy of international law in enforcing the rights of refugees. Illegal pushback policies are nothing new in Europe. Videos and chilling investigations from NGOs bear witness to the palpable fear and violence that refugees face in pushbacks around Europe. Allegations against the European Border Patrol and Coastguard Agency (Frontex) indicate that it has ignored or participated in illegal pushbacks, violating numerous human rights. These allegations paint a picture of Europe’s unwillingness to uphold the rights of refugees, and show that these policies are allowed, if not encouraged, by inter-state government agencies. Under illegal pushback policies, armed and often unidentifiable border guards force migrants and refugees back over the borders they just crossed, labeling them as “illegal immigrants” and ignoring their pleas for asylum. These pushbacks, while inhumane and a violation of international law, seem to have become the norm in Europe. Actions being taken on the borders of Poland and Belarus go beyond illegal pushbacks, however, with many calling Belarus’ actions a direct attack aimed at destabilizing the EU. Despite this, Poland and the EU’s responses to this crisis may be seen as just as unconscionable. Minsk’s Manipulation and Exploitation of Refugees Since 2020, the EU has levied economic sanctions against Belarus for its human rights violations in connection to its 2020 presidential elections. In response, the Belarusian government has encouraged migrants and refugees to come to Belarus from the Middle East and Africa on tourist visas and then cross into the EU to gain asylum. These individuals pay a steep price for a Belarusian visa, but then are pushed across the border between Belarus and Latvia, Lithuania, or Poland, where they are prevented from crossing over or returning to Belarus. These refugees are trapped in a limbo, constantly being pushed between these borders, and unable to access adequate assistance. In the last two weeks alone, at least six trapped on the border in the Białowieża Forest between Belarus and Poland have died from cold and hunger, with both countries refusing to take responsibility. Rik Daems, the president of the Parliamentary Assembly of the Council of Europe has called these actions human trafficking and an intentional creation of a migration crisis. In a joint declaration, Estonia, Latvia, Lithuania, and Poland alleged that this crisis was created in an effort to destabilize the EU as retaliation against the sanctions levied against Belarus. To many, it is a clear act of aggression with refugees used as weapons against the EU. The EU and Poland Must Take Responsibility However, while Belarus bears a portion of the responsibility for the impetus of this crisis, it is Poland that refuses to review the refugees’ asylum claims and pushes them back from the border, and the EU that fails to hold Poland accountable for its actions. The EU and Poland must take responsibility for their roles in this human rights disaster instead of holding Belarus solely responsible. In response to the influx of refugees from Belarus, Poland has increased its border patrol and changed its laws—violating international regulations—to keep refugees out of the country. Recently, Polish Defense Minister Mariusz Błaszczak unveiled plans to build a 2.5-meter-high fence on its border. Poland has also declared a state of emergency at its borders, preventing journalists, NGOs, and activists from monitoring the situation for further human rights abuses. Some Polish government officials have begun demonizing the refugees trapped on the border, a common tactic intended to secure public support for its inhumane pushback policies. In a press conference, Poland’s Interior Minister, Mariusz Kamiński, falsely claimed that a photo found on a migrant’s phone showed evidence of bestiality in an attempt to promote xenophobia and anti-refugee sentiment. The international legal community has not been silent on this issue, but its words carry little weight. The European Court of Human Rights held in M.K. and Others v. Poland that Poland had collectively expelled people at its borders in violation of international law by refusing to hear the individual claims of refugees. In cases where an asylum seeker would be removed to an intermediate country, such as Belarus, the Court held that a country must either examine the merits of the asylum seeker’s application or ensure that this person would have access to an adequate asylum process in the country they would be removed to. Additionally, the court has called on Poland and Latvia to help refugees trapped on the borders by supplying food, water, clothing, medical care, and temporary housing. However, the Court did not require either country to accept refugees into their countries. Moreover, the UN Refugee Agency has also called on Poland to aid refugees, saying that “safe border management and providing safe haven for refugees are not mutually exclusive.” Poland thus far has not offered assistance to refugees and has claimed that the refugees are Belarus’ responsibility. In a recent ruling, Poland’s Constitutional Court held that its laws hold supremacy over those of the EU, eliciting a harsh rebuke from EU officials. While the EU’s response to this decision has been vocal, the EU has been nearly silent on the human rights abuses at Poland’s border, likely because it simply does not want more refugees in Europe. While this geopolitical conflict plays out, innocent people’s lives hang in the balance and more lives risk being lost as each day passes with no resolution. This crisis presents an opportunity for the EU to move away from its violent border control policies and set a standard throughout Europe that refugees must be protected and treated humanely. As winter approaches, Poland and the EU must determine if border security will be prioritized over human life and the international laws they are bound to uphold.

About the author: Shubham Gandhi is a IV year law student from National Law University, Jabalpur, India. "Cyber attacks" by Christaan Colen, available here. Strides in technology have weakened states against the threat of cyberattacks. The digitization of economic, public, trade secret, and nuclear information has rendered all of these systems prone to cyberattacks. Russia’s successful meddling into the 2016 US election exemplifies how insidious and tangible the consequences of a cyberattack can be. As states continue to contend with threats of cyberattacks, the international law that regulates them is largely undeveloped and ignored by the international community. This article will explore the current state of international cybersecurity law, focusing on cyberattacks as a use of force under Article 2(4) of the UN Charter, and the right of self defense to cyberattacks under Article 51 of the UN Charter in the context of the challenge of attribution. Mounting Cyberattacks and the UN charter Over the past decade, the world has witnessed the first instances of state and non-state actors targeting countries’ civil and military services via cyberattack. In 2007, a cyberattack blocked Estonia’s websites, paralyzing the country’s Internet infrastructure, and freezing bank cards and phone networks. In 2010, Google’s password system was targeted by an anonymous cyber group, resulting in theft of user password information and intellectual property, and violating millions of people’s right to privacy. While the threat to privacy rights and data security is grave, cyberattacks can also target a country's nuclear plants and dams, which could lead to even greater harm and loss of life. The US was subject to another cyberattack by a computer worm named Stuxnet, which infiltrated supervisory control and data acquisition systems related to the US-Iran nuclear program, resulting in damage to its uranium enrichment. South Korea also experienced a cyberattack that targeted the president as well as the military’s defense system. In its Law of War Manual, the US military even describes instances where cyberattacks could trigger a nuclear meltdown. There is a dearth of jurisprudence governing how states can protect themselves from cyberattacks by state or non-state actors. However, there is a potential international legal framing that would allow states to respond to cyberattacks. Classifying the attacks as uses of force pursuant to Article 2(4) of the UN Charter could lead to a recognition of the right of self defense against a cyberattack pursuant to Article 51 of the UN charter. The Meaning of “Use of Force” under Article 2(4) The wording of Article 2(4) of the UN charter does not differentiate between war and non-war settings during which states use force. In other words, acts do not have to take place within the context of a war to be deemed a use of force under this provision. In the Advisory Opinion on the Legality of the Use of Nuclear Weapons, the International Court of Justice (“ICJ”) insisted that Article 2(4), Article 51 and Article 41 “do not refer to specific weapons.” This means that cyber operations are not precluded from being considered as uses of force under Article 2(4) of the charter. Customary International Law and the US have both adopted a consequence based approach to classifying uses of force. This approach stresses the consequences of the attack rather than the means or weapons used. For example, in the Nicaragua Judgment, the United States was involved in military and non military activities and was supporting Fuerza Democrática Nicaragüense, a militant outfit, against the newly formed government in the state of Nicaragua. The ICJ determined that the United States violated Customary International law by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state.” In doing so, the ICJ ratified the scale and effect test in order to determine whether the actions constituted uses of force as defined by Article 2(4). The court held that if the magnitude (scale) and the consequence of the attack (effect) is of substantial gravity, then it will constitute an armed attack, thereby triggering the right of self defence. Similarly, in his paper “Cyber attacks, self-defence and the problem of attribution,” Nicholas Tsagourias, Professor and Director of Sheffield Centre for International and European Law summarizes circumstances in which cyber operations should fall under the expression use of force: “An act or the beginning of a series of acts of armed force of considerable magnitude and intensity (i.e. scale) which have as their consequences (i.e. effects) the infliction of substantial destruction upon important elements of the target State namely, upon its people, economic and security infrastructure, destruction of aspects of its governmental authority, i.e. its political independence, as well as damage to, or deprivation of its physical element namely, its territory.” Thus, pursuant to Customary International Law, cyberattacks can likely be characterized as uses of force, and thus legislated under Article 2(4) as breaches of the UN charter. Exceptional Right of Self Defense under Article 51 Article 51 of the UN charter grants exceptional rights to its member states to defend themselves against any “armed attack.” Scholars have found that the expression “use of force” under Article 2(4) is broader than the term “armed attack” under Article 51. In differentiating between the articles, the UN sought to limit interstate war, since states would be granted the right to self defense if the use of force is qualified as an armed attack. In simple terms, “armed attack” constitutes a use of weapons. However, in the Legality of the Use of Nuclear Weapons (supra), the ICJ states that the use of weapons is irrelevant to defining an act as an armed attack. Professor Karl Zemanek, emeritus Professor of law at the University of Vienna and member of the Institut de droit international, stated in his book ‘Armed Attack’ that, “[I]t is neither the designation of a device, nor its normal use, which make it a weapon, but the intent with which it is used and the effect. The use of any device or number of devices, which results in a considerable loss of life and/or extensive destruction of property must therefore be deemed to fulfill the conditions of an armed attack.” The Security council reaffirmed this reasoning by recognizing hijacked planes as weapons in relation to the 9/11 attacks. Similarly, Rule 13 of the Tallinn manual states that cyberattacks are recognized as armed attacks if they pass the scale and effects tests, granting states on the receiving end the right to self defense. Thus, cyberattacks, by applying the scale and effects test, can potentially be declared uses of force under Article 2(4) that rises to the level of an armed attack that grants the right of self defense pursuant to Article 51. The Problem of Attribution One critical issue that prevents states from exercising self-defense against cyberattacks is the problem of ascertaining the real perpetrator. When it comes to cyber operations carried out by non-state actors, the law as recognized by the International Law Commission, and tested in Nicaragua v. United States states that if non-state actors are working directly under the direction or control of the state, the state will be held responsible. Permitting the state to exercise its right of self-defenses indefinitely without attributing the attack to any state or non-state actor will dampen the effects of the UN’s endeavors to reduce the use of force among member states. Such a practice will erode Article 51’s purpose of limiting the frequency and scale of forceful self-defense to those rare times where it becomes extremely necessary. Cyberattacks can be made by using foreign servers, which makes tracing the original attacker impossible. In his book, Marco Roscini, Professor of International Law at the Westminster Law School, articulated three levels of evidence that are needed to attribute a cyber attack to a specific state: “First, the computer(s), or server(s) from which the operations originate must be located; secondly, it is the individual that is behind the operation that need to be identified; and thirdly, what needs to be proved is that the individual acted on the behalf of a state so that his or her conduct is attributable to it.” Conclusion The rising instances of cyber attacks serve as a wake up call that international institutions must address. The expression “use of force” under Article 2(4) is likely wide enough to encompass cyberattacks, potentially giving the states the right to self defense under Article 51. A unique problem of attribution arises with the cyberattack because it is increasingly difficult to objectively attribute the source of the attack. The UN should explore enforcing limitations on the right to self-defense against a cyberattack before states choose to respond to a cyberattack with physical force

About the Author: Nimisha Thomas is a Lecturer and Assistant Dean at Jindal Global Law School. She is a researcher in the field of International Dispute Resolution and WTO laws. "WTO Public Forum 2014, Day 3" by World Trade Organization is licensed under CC BY-SA 2.0 available at here. The Crisis The World Trade Organization (WTO)'s Dispute Settlement System, often referred to as the “jewel in the crown” of the WTO, is facing an existential crisis despite being the most solicited international adjudicatory system. While dispute resolution through consultations and panels continue to move forward, the working of the Appellate Body (AB) has come to a grinding halt, with 16 pending cases for appeal as of December 2020. For two years, the US has blocked the appointment of new judges to the AB, preventing the AB from reaching the quorum necessary to hear appeals. The US’s obstructions are rooted in two allegations. First, the US alleged that the AB exceeded its mandate and misinterpreted the WTO agreements in several cases concerning the US and other member nations. Second, the US alleged that the AB contravened the WTO rules by extending its mandate after its term had expired. The US claimed that the discretion of extending the mandate of the AB lies with the WTO members rather than the AB itself. Further, the US objected to the AB’s failure to adjudicate appeals within the 90-day-window required by the Dispute Settlement Understanding (DSU), the main WTO agreement on settling disputes. The US also raised concerns regarding the obiter dicta that constitute a major part of the AB reports, which would create complexity with the AB’s unprompted precedents. Additionally, rather than limit itself to its original mandate of deciding on questions of law, the AB overstepped its mandate in reviewing factual findings. The US also objected to the AB placing importance on precedents, which might be blindly followed by panels in deciding disputes without considering the relevant merits of the dispute in hand. Impairment at the appellate level threatens the survival of the multilateral trading system. The implication of this deadlock is grim; a signatory member dissatisfied with an AB decision could prevent the decision from becoming binding by seeking an appeal. Without an Appellate Body to adjudicate the dispute, the decision would remain in limbo. WTO members now face the risk of other signatories reneging on trade obligations and commitments established by WTO agreements. Proposed Solutions While the AB’s operations remain suspended, the European Union and 24 other WTO members, including Australia, Brazil, and China, entered into a multi-party interim appeal arrangement (MPIA) on April 30, 2020. Amid the current AB impasse, MPIA members have the alternate option of appealing trade disputes between themselves. There are three main features that differentiate the MPIA from the AB. First, the MPIA attempts to strictly limit the time window for adjudicating appeals to 90 days. Extensions are only granted if the contending parties agree. Second, the MPIA advances interests of judicial economy by allowing the exclusion of claims. Third, the MPIA requires the tribunal to only address the issues necessary for resolving disputes. Although the MPIA may appear to be the way forward, it is too early to comment on its viability as a temporary solution, or even as a replacement for the AB in the long run. Its distinguishing features from the AB might also encourage the US to join the body, as it partially addresses some of its concerns. But neither the US nor the majority of the WTO signatories have joined the MPIA. Any appeals by such non-signatory members of the MPIA continue to be in limbo. Therefore, to find a comprehensive and permanent answer to this issue, alternate solutions based on the spirit of mutual cooperation and consensus are necessary. Like the MPIA, bilateral treaties have been perceived as striking solutions by academics and jurists. These treaties may resolve the problems of unilateral actions and violations by member countries because they require mutual agreement of terms. However, participation in such treaties could present hurdles for developing and least developed countries due to power imbalances. For example, Ecuador recently terminated all of its bilateral investment treaties (BITs) in part because it ceded its regulatory powers . Moreover, entering into such treaty agreements would deprive developing and developed nations of the special and differential treatment that the multilateral trading system provides. Lastly, arbitrations involving bilateral agreements can result in enormous and unfair awards. The Way Forward To overcome the impasse, the WTO should adopt the Walker Principles, which set out policies to resolve the conflicts with the AB that the US has raised. Additionally, this article proposes the following reforms to complement the Walker Principles: Greater clarity in the text of the DSU This has been a point of contention since the 1990s, with failed attempts even as late as 2001 during the Doha Round. Since the dispute resolution process is guided by the DSU rules, it is essential that the rules be defined with more clarity. 2. Formation of a specialised body of experts in trade law, dispute resolution, and the WTO Experienced members with a proven track record should be appointed through the consensus of the Dispute Settlement Body (DSB) for the resolution of disputes. The body of experts should be the sole entity responsible for reviewing issues involving interpretation of agreements. It should review issues on a case-by-case basis, and its decisions should be binding for member nations. 3. Establishment of an extended standard time window for resolving decisions on appeal All DSB members should reach a consensus on an extended standard time window for resolving decisions on appeal because the existing 90-day-window has proven insufficient. Conclusion The WTO and its internationally relied upon dispute resolution mechanism are under serious threat because the US continues to block new appointments to the AB. While the impasse continues, WTO members have continued to demonstrate their faith in the 25-year-old institution by engaging in consultations and seeking panel formations. However, the threat to the AB cannot be ignored. AB alternatives, like the MPIA, are already in effect, but most WTO nations are not participants. Scholars and jurists have also proposed solutions like bilateral agreements. However, these agreements suffer from power imbalances. Therefore, to reinstitute the smooth functioning of world trade, it is imperative to either remove the current issues that led to the US’ blockage of appointees, or devise alternative solutions with the consensus of member states. Instituting the Walker Principles, clarifying the text of the DSU, establishing a body of experts, and extending the time windows for issues on appeal are concrete steps that would bring the WTO closer to a resolution.

About the author: Nate Van Duzer (J.D. candidate, 2023) is a Contributor to Travaux. He has worked with local policymakers and elected officials for nearly a decade, first as an aide to a Seattle city councilmember and later with the administration and school board of Seattle Public Schools. He holds a BA in history from Georgetown University and a Master of Global Affairs (International Peace Studies concentration) from the University of Notre Dame. Photo courtesy of Julian Ortiz, JEO Photography, available here. General Mark Milley’s actions to guard against an uncounseled nuclear strike provide another stark reminder of the dangers inherent to these missiles. History is rife with close calls, where accidents or poor judgment almost led to nuclear war. Earlier this year, Travaux provided an overview of the new Treaty on the Prohibition of Nuclear Weapons (TPNW), which entered into force in January 2021 and took a clear stand against these weapons of mass destruction. With the nuclear weapons industry in the United States currently booming, it is appropriate to take a closer look at this treaty and the status of nuclear weapons in international law. Skeptics have questioned the potential effectiveness or meaningfulness of TPNW given that states with nuclear weapons have actively opposed it, but such skepticism often overlooks the full breadth of the treaty’s provisions and the power of international norm-setting. This article will further explore the implications of TPNW, which has now been ratified by 56 countries and signed by 30 more. In doing so, this article also compares TPNW to other arms control treaties and assesses nuclear weapons under current international humanitarian law. Binding Prohibitions Since TPNW entered into force, the states who are party to it must follow its binding prohibitions in Article 1, which go beyond testing, developing, or using nuclear weapons. State parties to the treaty may not “[a]ssist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty.” Neither may they “[a]llow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” This latter provision, Article 1(f), is quite clear in its language and could have serious ramifications. Five European countries host the United States’ nuclear weapons on their territory: Belgium, Germany, Italy, the Netherlands, and Turkey. European support for TPNW, including Article 1(f), is growing. A 2020 poll found that more than 75% of respondents in Italy, Belgium and the Netherlands answered “yes” to the question: “Do you think your country should join [TPNW]?” Should the governments in those countries respond to popular support for the treaty by signing onto the agreement, they could no longer host these weapons. The broader language of Article 1(e) could likewise affect current nuclear weapons operations. Any NATO member state that joined the treaty could still participate in NATO but would not be allowed to participate in NATO’s Nuclear Planning Group. Any of the seven countries that provide conventional air support for NATO’s nuclear weapons operations would have to withdraw their participation. If any company that contributes directly to nuclear weapons development is headquartered in a state that adopts the treaty, its operations may be affected under this provision. While states with nuclear weapons currently have no intention of signing the treaty, they may face its tangible effects sooner than they would like. This may explain why these states vehemently oppose TPNW and actively pressured other countries not to sign the treaty in an attempt to avoid its entry into force. Affirmative Obligations In addition to the prohibitions discussed above, TPNW’s Article 6 and Article 7 place affirmative obligations on its state parties. Article 6(1) mandates adequate assistance to victims of nuclear weapons use and testing, “including medical care, rehabilitation and psychological support, as well as . . . social and economic inclusion.” Article 6(2) calls for “necessary and appropriate measures towards the environmental remediation of areas” contaminated by nuclear weapons testing or use. Article 7 notes that these are shared responsibilities, and states with the capacity to help outside their borders should do so. Article 7(6) emphasizes the responsibility of those state parties that have used or tested nuclear weapons before. These provisions recognize that the human and environmental costs of nuclear weapons use and testing are significant and ongoing, even if testing has ceased. It is important to note that most of the nuclear powers conducted their tests on colonial territories or near marginalized populations like indigenous peoples. Countries have taken different approaches to remedying the harms caused by nuclear weapons use and testing, but much more work needs to be done. This will naturally entail policy questions and tradeoffs. One commentary has noted that the first meeting of state parties to be held under the treaty—currently scheduled for March 2022—will be critical in setting the stage for what these positive obligations might entail. Comparisons to Other Arms Control Treaties In a recent journal article evaluating the future potential of TPNW, two arms control scholars, Richard Lennane and Richard Moyes, compare the treaty to other parallel international instruments. First, they discuss treaties that ban the other categories of weapons of mass destruction (WMD), the 1972 Biological Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC). BWC is drafted similarly to TPNW, while CWC contains more detailed disarmament protocols. All eight declared nuclear weapon states have signed and ratified both conventions. The logic of deterrence, while readily applied to justify the possession of nuclear weapons, seems to have been long discarded for these other types of WMD (Israel, the one undeclared nuclear weapon state, has not signed or ratified BWC and has signed but not ratified CWC.) Second, Lennane and Moyes consider the other more recent humanitarian disarmament treaties, the 1997 Mine Ban Treaty and the 2008 Convention on Cluster Munitions. These instruments have strengthened norms against the use of these weapons. As a result, the authors argue, while a nation may use such weapons from time to time, it usually denies doing so. Like TPNW, these treaties have not achieved universal acceptance, but the authors argue this has allowed a greater emphasis on the humanitarian concerns motivating the treaties. They note that “norm-setting based on humanitarian realities can only effectively be brought to bear if the instrument that is constructed maintains a focus on those humanitarian realities and is not pulled away from them by political pressures.” TPNW, the Non-Proliferation Treaty, and International Humanitarian Law TPNW opponents have attempted to argue that the new treaty could give states cover to pull out of the longstanding Non-Proliferation Treaty (NPT). NPT has served as the cornerstone of nuclear non-proliferation for decades and any attempts to undermine it would be concerning. An analysis of the two treaties together finds it unlikely that TPNW membership would lead countries out of NPT. In fact, TPNW provides a natural culmination to Article VI of the NPT, which calls for good faith negotiations to complete disarmament. Should countries leave NPT, it would more likely be due to frustration with the nuclear weapon states’ current lack of commitment to NPT’s Article 6. Finally, as states with nuclear weapons continue to oppose TPNW, it is worth noting that any potential use of nuclear weapons would likely violate multiple precepts of international humanitarian law, despite an ambiguous advisory opinion on the subject from the International Court of Justice in 1996. The 1977 Additional Protocol I to the Geneva Conventions contains several important principles that “would prohibit the use of nuclear weapons in almost all conceivable scenarios.” First, the Protocol requires that, in warfare, countries distinguish between military and civilian targets. Second, the rule of proportionality requires that an attack on a military target not inflict disproportionate civilian casualties. Third, the Protocol prohibits superfluous or unnecessary suffering even if a state attacks a pure military target. The long-lasting effects of exposure to nuclear weapons may violate this principle. An application of these principles to the U.S. bombings of Hiroshima and Nagasaki found those attacks to violate this Protocol. In Conclusion In summary, any defense of nuclear weapon use requires setting aside adherence to international humanitarian law. Proponents of the use of nuclear weapons or nuclear deterrence, which relies on the willingness to use nuclear weapons if necessary, may choose to value their national security over these principles. However, the fact that so few countries make this determination publicly should be questioned.

Article by Luke Miller (JD, 2021) and Martin Ren (LLM, 2020), In the last few weeks, Luke Miller (JD, 2021) and Martin Ren (LLM, 2020) had the pleasure of interviewing three of the plaintiffs challenging the constitutional validity of the Mauritian sodomy law before the Mauritian Supreme Court. For security reasons, the plaintiffs will be referred to as Plaintiff 1, Plaintiff 2, and Plaintiff 3. In a plaint filed on 6th September, the plaintiffs allege that the law has violated their constitutional rights to liberty and non-discrimination, and should therefore be struck out. Plaintiff 1 is the founder of the Young Queer Alliance (“YQA”), a non-governmental organization in Mauritius that advocates for LGBT rights. Since 2017, Plaintiff 1 has submitted periodic reports on LGBT rights in Mauritius to the Office of the U.N. High Commissioner for Human Rights. Plaintiff 2 is a member of the YQA. In October 2017, he advocated for LGBT rights at the 121st session of the United Nations’ Human Rights Committee in Geneva. Plaintiff 3 is also a member of the YQA. He is a freelance graphic designer who uses his artistic skills to create pamphlets to raise awareness about LGBT rights in Mauritius. Below are excerpts from these interviews. They have been edited for length and clarity. Martin: How did you learn about your sexual orientation? Plaintiff 3: I think I’ve always known about that. Some people would say: “This should be hidden.” “This is bad.” My family would say: “Don’t behave like this. This is a girly manner. You can’t be this way. You have to be like a boy. Boys shouldn’t cry. Boys shouldn’t dance like this.” Growing up, watching TV, if there was a LGBT character portrayed on the screen, [my parents] want to change the channel. They don’t want to talk about it. . . I remember that my parents saw me looking at that and immediately changing the channel. If I see a girl and a boy kissing then that’s fine. But if I see two boys kissing then that’s not fine. It would be weird. M: Under what circumstances did you decide to come out? I: I came out when I met my first and only boyfriend. I came out officially to my parents and my whole family. I was in a relationship with my boyfriend. It turned out to be really messy. I had lots of issues with religion in Mauritius. He was a Christian. I was a Hindu. For the longest time, I thought religion couldn’t be a barrier to our relationship. I thought we could get to know each other and eventually find a way to live together. But destiny chose otherwise. One day, he just told me that this was not possible. He had to leave this gay life and find peace with a woman and have a monogamous relationship with a woman and have a child. These things didn’t make sense to me. I was very much in love that I had a meltdown in front of my parents. They were very worried about me and my health. And then I told them: “I am this way. I’ve been trying to hide this because I was ashamed.” I was ashamed because in Mauritius, I was expected to have a child, have a family, make a good living, and create a reputation. This was life. Things that are not in that norm would be considered an issue or a problem in the society. That may also ruin the family’s name, even create problems for my sister’s wedding. My family was offended that I chose a LGBT life. So these were the factors that prevented me to even speak a word about this. I wanted to have a stable life. I wanted a person to be my confidant, a person with whom I can share my stories, a person who can be with me. But sadly it didn’t turn out this way. When I went to my family and said all of that, they were very disappointed in me. This took a toll on them greatly because they didn’t know how to react, and how to go from there. It was a hard time for me. M: Did this happen when you were in school? P3: It was the first year of my university. It affected my education. At the beginning I was passing my modules. Right when my boyfriend left me, I was in a mess. When I was in the mess, I was failing all of my modules. My parents were worried because they had to pay extra fees to get me to re-do all of my studies. When I met my boyfriend, he was a very sweet and gentle person. I think he’s still a sweet and gentle person. But back then, I didn’t know much about him. I only knew that he cared a lot about me and wanted to know me and be my boyfriend. But eventually when I learned he was a Christian, he told me to come down to his local church. I did. He explained to me the differences between a Catholic person and a Christian person. It was just a normal church--You get blessing that cures you from any diseases in the world. I was skeptical and I didn’t believe that. “How could that be?” But I was very open-minded. He kept influencing me and encouraging me to study Christianity and for me to learn that other religions are bad. Eventually I was in deep Christian world. I started to believe in it very much. One day, the local churchman, the pastor, told me that: “You are sick.” I told him: “No, I’m not.” He said: “Yes you are. In front of the Lord, you hide your sins and you need to be cured.” I said: “No, that’s wrong.” I saw my boyfriend moving his head, as if he was saying: “Yes, do it.” The local churchman grabbed me in front of everyone and said: “The Lord will cure you and take out your Demon, your sexual pleasures and everything.” I freaked out. I started getting shivers all over my body. I thought: “This is wrong.” Then I started to avoid my boyfriend. But I still wanted him to love me. It was my first love. I couldn’t live with the thought that I could live. But I guess he was way more into his Christian beliefs than actually loving me. Once he told me: “You know what . . . we need to stop seeing each other. You need to be cured and everything.” It broke me down completely because I didn’t know what to believe in anymore. I didn’t know how to say that to my parents. It was okay to live in the way I lived. I was in a complete dilemma. And then I was so sick that I had to go to the hospital. When I went there, the doctor admitted me. I was in fact having a depression. I kept sobbing in front of everyone. It was a really, really tough time. I didn’t know how to communicate to someone. I didn’t know how to explain anything to myself. I didn’t know anything anymore. My parents were afraid. They freaked out. They were ashamed of what was happening to their eldest son. The doctor, the treatment and staff were not appropriate at all to me. I couldn’t believe that they could do that to a person. When I was hospitalized, some doctors laughed at me and I couldn’t understand. They would say in the local language: “What the fuck are you crying about? You’re crying about the man? How shameful! You should be grateful that you have parents and a good living situation. You shouldn’t be crying and sobbing like that.” I didn’t reply to them. Had I replied to them, they would’ve treated me even more poorly. So I shut up. M: How did you learn about your sexual orientation? P2: When I was at a very young age, I was feeling different. I didn’t feel attracted to girls. I was mostly interested in boys. It was something that I already knew. When I was a teenager, I became more aware of the concepts of gay, lesbian, transgender, queer, and bisexuality. For instance, when I was at primary school, I remember boys who refused to play with me. I was very sad and very disappointed. I told one of my teachers that boys didn’t want to play with me and asked: “What should I do?” She told me that: “Go play with the girls and ask from them.” So I started to sit more with them at primary level. From when I was six til eleven, I was playing with girls rather than boys. When I reached college, it was more difficult. I was admitted to a same-sex college where there were only boys. Stuff became more complicated. I was bullied because I didn’t adhere to the code of masculinity. I was not talking like them, walking like them, behaving like them, or thinking like them. This was the issue. So they bullied me. My bullying started on my first day of school. I thought it would be the best days of my life. But it turned out to be the worst because I had been bullied. I had been beaten physically. They even bullied me on social networks, writing stuff about me. I was very traumatized by this experience. There were also teachers who were not very nice to me, particularly middle aged teachers. They were a bit rude. They were treating me differently. I didn’t feel included in the class. The way they addressed me there was clearly a difference. I felt it. The good thing was when I was 14, I was in class in English literature class, they were bullying me and laughing at me. I was really down. I couldn’t stand it any more. So I just ran away from the class and lock myself in the locker. I was crying, crying and I wanted to stop school. I was telling myself: “I can’t come everyday and be bullied like this.” On that day, there was a teacher, a lady, who knew I was being bullied. She decided to help me in some way or another. So she asked another colleague to go and speak to me. The colleague told me to return to the class. I tried. When I was in the corridor on my way to return to class, the same lady teacher tried to speak to me and explain to me that: “I may be different, but that’s not a reason to escape, because if I escape today, then all my life I’ll be escaping.” I became more courageous. I returned back to class. When I returned back to class, all the students were laughing at me. I decided to ignore them and continue to follow my studies. After class, I went to apologize to my teacher that I was sorry that I ran out of the class. She forgave me. Later on that day, my French teacher passed me a small note that said: “You need to have a lot of courage to smile in this world.” The note made a lot of impact on me. As from that day, I was able to do better in my studies. M: Did the discrimination continue after you entered university? P2: When I was in university, my friends and I tried to create a club about LGBT and human rights. But our application wasn’t approved. At the time, the president of the student union said that we cannot discuss such issues because it is sensitive and taboo. If you want to do this, you have to do this as part of an existing counselling club, and not as our own independent club. Counselling clubs were where people meet to discuss their problems. The president of the student union was thinking that we were having problems. He thought we had a psychological disorder that had to be counselled. When the president told us to join the counselling club, I told him that I didn’t want to join a counselling club. I wished to have my own club, where people can be themselves and express themselves, and not fear being rejected. But still he insisted on us joining the counselling club. In the end, the LGBT club wasn’t approved. It was a problem for the president of the student unions at that time. M: Did the formation of the Young Queer Alliance encounter similar difficulties? P2: We faced homophobic attitudes from the authorities. They refused to register the Young Queer Alliance, because, according to them, we were going against the Mauritian Constitution. When we went to register the YQA, we presented all of our relevant documents. In our objectives, we mentioned that we were catering to the LGBT young people in Mauritius. At the Registry of Associations, we were told without pity that this was going against the Mauritian Constitution. They are right to the extent that LGBTs are not mentioned in the Constitution. But they cannot restrict us and organizing ourselves in a movement, and coming up with our association. This is because in our Constitution, we have the right to freedom of association. They were coming up with stupid excuses and unfounded explanations for avoiding and restricting this registration. For us to register the YQA, we had to lodge an official complaint to the Equal Opportunities Commission. We had to complain about this form of homophobia of the Registry of Associations. During the hearing that we had, none of the representatives of the Registry was present. So at the end of the day, we were able to be registered as an association. M: Apart from the Registry of Associations, are there other instances where LGBTs in Mauritius faced discrimination from the authorities? P2: There was a case of a transgendered person who was doing work as a peer educator. She was distributing condoms and she led sensitization campaigns. Police arrested her for soliciting males for immoral purposes. They considered her outfit as indecent. They took her to the police station, where she was verbally abused. They even asked her to remove all her clothes. They did a body search and forced her to do a catwalk in the police station nude in front of all of the police officers. This was in in 2016. Recently, in April 2019, two lesbians were victims of violence by their relatives. They had been victims of verbal and physical violence. Two young [women] back in 2015 tried to get married under Mauritian law. They went to the authorities to get married. Their request was not accepted. In our laws, same-sex marriage is not recognized. But at the same time, our laws also don’t define marriage as between a woman and a man. The spouse has a gender-neutral meaning. Marriage under Mauritian law is between “spouses”. This term has a gender neutral meaning. It doesn’t say it’s between a man and a woman. Luke: Could you talk a bit about what the Young Queer Alliance does? P1: There have been many, many [things] that we have been doing and we are still working on in the organization: social support, community support, mobilization is one of the actions of the organization where we network within LGBT people, to move forward, to empower people, but also to have safe spaces where you can go out hiking and go on outings--like anything just to be among ourselves. But then there are spaces that are open to people who are not LGBT as well because you also want to have that kind of dialogue with people from the general population…… [and] because we do understand that, as a queer person, you do not necessarily live and evolve within LGBT spaces, but in spaces where everyone else is present. So that kind of involvement is very important within that community mobilization. There is also whatever is related to HIV and STI prevention, health, and stuff like that. Since 2015, we have been involved with HIV programming and an HIV prevention organization… with the MTV [Staying Alive Foundation] single out foundation and now we are doing work with the [National Social Inclusion Foundation] in our country. So that has been ongoing work for years within the organization. There is also some psychoanalysis and a foundation for counseling and management that we do, when queer people have issues with their families, so we go there, we provide support for the queer people, and then, if the queer people feel that they are okay with us reaching out to their parents or their siblings, then, and only then, will we reach out to the parents and the siblings. Because we do understand that in the culture we live in ... you often stay a while living with your parents--it's not like once you turn 18 or 21 you leave the house and you live on your own, it is not this way, generally. So it is very important for us to have that input of the affected person, to know that they would feel safe having us talk to their parents, and then we would reach out. We also have an emergency shelter that we run together with GenderLinks and MediaWatch organization for LGBT women and girls only. We started that in 2018... provide them with that safe space because in this country there are not many safe spaces for queer people.... Another chunk of our work that we do is advocacy within the organization ... let's say for impactful advocacy against the government. In 2017, there was a Human Rights Committee session at the UN where Mauritius had to submit [a report on] how it has addressed certain human rights issues as per the International Covenant on Civil and Political Rights, so we submitted an alternative report to the government that was received by the human rights committee. That was with support from the International Lesbian, Gay, Bisexual, Trans and Intersex Association..so they guided us through the process ... and one of the other plaintiffs [in this case]represented that organization at the Human Rights Committee, and presented the report and the different issues we had And following that, it was the first time that Mauritius received recommendations based on sexual orientation by the Human Rights Committee. And that was a moment where we felt like: “This kind of advocacy is working.” About the Authors: Luke is a second-year law student at Berkeley Law and is part of the group of students preparing an amicus brief on behalf of the plaintiff in this case. Martin trained at the law firm representing the plaintiffs in this sodomy case. He interviewed the plaintiffs to increase awareness of the case.

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. In her free time she enjoys playing piano and baking pies. Abandoned Ships in the South China Sea by Trey Ratcliff, available here. As of September 1, 2021, new revisions to China’s Maritime Traffic Safety Law (MTSL) regulating the passage of ships through China’s territorial waters went into effect. The new provisions have drawn backlash from Western observers and Beijing’s neighbors in the South China Sea. These countries perceive the MTSL changes as an illegal attempt to expand the bounds of China’s sovereignty. On September 8, the United States responded to the MTSL revisions by sailing the USS Benfold to the Spratly Islands in a freedom of navigation operation. China’s state-run media reported that the ship trespassed the country’s territorial waters and was therefore expelled. Naturally, the US military contested this narrative, saying that the operation was a success and that Beijing’s stance violates “international rules and norms” and encroaches on the maritime rights of its Southeast Asian neighbors. The Benfold spat highlights controversy over the legality of China’s actions in the South China Sea. In particular, Beijing’s most recent MTSL amendments raise two primary questions: Are these regulations consistent with the principles of freedom of navigation and right to innocent passage? Is the MTSL’s definition of China’s territorial seas compatible with international law? Freedom of Navigation and Right to Innocent Passage Critics of the MTSL argue that it violates states’ rights to innocent passage through territorial waters. This principle is enshrined by the 1982 United Nations Conference on the Law of the Sea (UNCLOS), which governs maritime sovereignty. MTSL Article 19 authorizes China’s “maritime administrative agency to establish ship routing and reporting areas, traffic control areas, and restricted navigation.” MTSL Article 54 requires certain types of ships, namely those carrying hazardous materials, to notify Chinese authorities prior to entering territorial waters. UNCLOS permits these types of restrictions within a state’s territorial seas as long as they do not impede the principle of innocent passage, which the treaty defines as any vessel transit that is not “prejudicial to the peace, good order, or security of the coastal State.” Thus, MTSL Article 19’s provisions that control and direct traffic are legal. However, controversy arises over whether the MTSL’s requirement for prior notification or authorization is consistent with the UNCLOS principle of a ship’s right to innocent passage. On the one hand, prior notification requirements came up at UNCLOS negotiations, but were left out because they did not have enough support. The president of the UNCLOS conference even confirmed afterwards that a ship exercising its right of innocent passage has “no need . . . to acquire the prior consent or even notification of the coastal State.” This evidence weighs against the legality of requiring prior notice for nuclear or hazardous ships. From the Chinese perspective though, this legal question is not so clear cut. Ding Duo of China’s National Institute for South China Sea Studies argues that just because UNCLOS does not expressly allow coastal states to demand prior notice of passage from foreign vessels, that does not mean doing so is illegal. In fact, there are already several other countries who require prior notification to enter their territorial waters with nuclear ships or hazardous materials. This table illustrates the different perspectives on a coastal state’s right to require prior authorization or notification from a ship carrying hazardous cargo. Some countries, including the US and United Kingdom, oppose any kind of regulation on states’ rights to carry hazardous materials into other territorial waters. Others, like Canada, require prior notification when ships enter their territorial waters with hazardous materials. Nations like Egypt and Malaysia take this a step further and require that these ships receive authorization from their government. Lastly, there are states that outright ban ships from carrying hazardous materials in their territorial waters. The legality of prior notification requirements ultimately hinges on whether nuclear-powered ships and ships carrying hazardous materials negatively impact a coastal state’s “peace, good order, or security.” Given this divided landscape, MTSL Article 54 seems less like a blatant violation of international law and more like China taking an official stance in a wider international debate. On the other hand, there are articles of the MTSL where China more clearly overextended UNCLOS provisions. For example, MTSL Article 44 prohibits innocent passage through restricted navigation zones designated by China’s maritime administrative agency. On its face, this appears in line with UNCLOS Article 25, which permits temporary restrictions on innocent passage for purposes related to military and security matters. However, MTSL Article 44 allows these curbs to occur for any purpose and without time limits. MTSL Article 52, which implements traffic control restrictions for safety purposes, presents a similar issue. This regulation includes limitations on speed, delimitation of traffic control zones, and restrictions on innocent passage. The former two measures are legal if performed within China’s territorial waters. However, under UNCLOS, countries cannot restrict innocent passage except for military purposes. Yet, MTSL Article 52 enumerates five non-military purposes to justify these restrictions. Thus, MTSL Articles 44 and 52 are overly broad in their interpretation of the license to restrict innocent passage within their territorial waters, and illustrate how some of the MTSL’s contents are clear contradictions of international law. What Are China’s Territorial Seas? Controversy also arises over the legality of the MTSL definition of China’s territorial seas. In Article 2, the MTSL defines Beijing’s “territorial sea” as “sea areas under the jurisdiction of” China. This vague terminology likely refers to waters extending 12 nautical miles from what China considers its territorial land: "the mainland and its offshore islands, Taiwan and [its] various affiliated islands, including [the] Diaoyu Island[s], Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to” China. This definition of Beijing’s territorial seas, called the Nine-Dash Line, is highly controversial. An illustration of Beijing’s Nine-Dash Line definition of its territorial seas. China’s assertion of sovereignty over South China Sea islands relies on its interpretation of its alleged historic rights to the region. China claims to be the first to discover the islands and establish communities and economic activity there. Beijing also asserts that over these two millennia, its jurisdiction has been continuous and unchallenged. Dating back to 111 BCE, historical documentation and archaeological evidence such as ruins, pottery, and coins all demonstrate a Chinese presence on the South China Sea’s islands at several points over the centuries. However, documentation and archaeological records alone are not dispositive of China having the sole legal claim to sovereignty over the islands and their surrounding waters. First, the record is sporadic, and only proves that Chinese people lived on the islands at some points in time. Second, China’s Southeast Asian neighbors have historically undertaken economic and explorative endeavors in the South China Sea islands as well. Dictum from a 2016 UN Tribunal case stated that while Chinese fishers and navigators worked in the South China Sea and utilized the islands, so did people of other countries. Vietnam, for example, claims that it has exercised sovereignty over the Paracel and Spratly Islands since the 16th century, and it too has artifacts and historical records to show for it. China’s interpretation of its historic rights therefore seems rooted in a skewed perspective that defines China by the extent of its sphere of historical and cultural influence at the expense of its neighbors. Moreover, in the aforementioned UN Tribunal case, the court held that China’s conception of its historic rights has been misguided with respect to the principles and regulations set forth by UNCLOS. In this case, the Philippines sued China for violating its Exclusive Economic Zone (EEZ). EEZs enable a country to have exclusive rights to subsurface ocean resources that lie beyond a country’s territorial waters. Manila’s EEZ overlaps with Beijing’s Nine-Dash Line. Because China considers the Nine-Dash Line to be the boundary of its territorial waters, it believes it has a right to use the resources within that boundary—even those encompassed by the Philippines’s EEZ. The Tribunal’s holding in favor of Manila determined that any historic rights Beijing may have had to maritime resources in South China Sea were “extinguished” if they conflicted with any EEZs established by UNCLOS. The decision implies that the MTSL is illegal if it applies to any other country’s EEZ. In Conclusion China did not consent to the UN Tribunal’s jurisdiction and says it is not bound by any of its holdings. Although it is doubtful that their claims to the South China Sea islands would hold up in an international court, China likely intends the MTSL to apply beyond the limits of its legally sanctioned territorial seas. Unfortunately, this domineering attitude towards the region will likely continue to increase tensions between Beijing and Western powers for the foreseeable future.

Photo courtesy of Flickr, available here About the author: Xiangyu Ma (LL.M. Class of 2022) is a contributor to Travaux. Prior to joining Berkeley Law, he obtained his LL.B. degree from Wuhan University in China. Previously, he 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. On September 16, China formally submitted a request to join the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP). CPTPP is a survivor of the Trans-Pacific Partnership (TPP), an effort led by former President Barack Obama intended to economically counter China’s influence in the Asia-Pacific region and to put pressure on China to raise its standards. However, the US government withdrew from this regional trade pact in 2017 before the agreement entered into force, per guidance from former President Donald Trump. Led by Japan, CPTPP was created as a succeeding agreement, and eleven countries signed the agreement in March 2018. It is unsurprising that China applied for membership in the CPTPP, as Chinese President Xi Jinping previously announced China’s interest in joining the CPTPP at last year’s signing ceremony of the Regional Comprehensive Economic Partnership (RCEP), another Asia-Pacific trade agreement. However, China still faces hurdles in joining the CPTPP considering the agreement’s “extremely high standards” and China’s rising tensions with member states and other applicants. Why Joining the CPTPP is Important for China The strongest impetus for China to join the CPTPP is the potential for significant economic benefits and trade promotion effects resulting from joining. One study estimates that China's accession to CPTPP would boost its GDP growth by 0.74 to 2.27 percentage points and export growth by 4.69 to 10.25 percentage points. Another study calculates that China’s membership in the CPTPP would yield $298 million on China’s total income by 2030. However, if China cannot join the CPTPP, it would face an estimated loss of $10 billion because of the trade diversion effect. Considering China’s economic downturn and tense diplomatic relations with other major powers, China’s economic growth resulting from joining the CPTPP would undoubtedly enhance China’s domestic political stability. This has long been a top priority of the Chinese government as it views a growing economy as vital to maintaining social stability. The CPTPP also provides China the opportunity to further advance its Belt and Road Initiative (BRI). As Chinese President Xi Jinping’s most ambitious economic and geopolitical strategy, BRI’s major goal is to “advance the building of free trade areas and promote liberalization and facilitation of trade and investment.” All CPTPP members except Australia, Canada, Japan, and Mexico have engaged in the BRI. Despite China’s more rapid trade growth with BRI countries than with non-BRI countries, Australia, Canada, Japan, and Mexico are key players in the Asia-Pacific, making them indispensable in establishing a high-standard free trade area in this region. Nonetheless, China does not have free trade agreements with these four countries. Although some are under negotiation, the prospects are gloomy – for instance, last year Canada abandoned free trade talks with China as the Trudeau government was increasingly under domestic pressure, receiving critiques that the government was too willing to concede to China to increase trade. China’s accession process to the CPTPP may bring these trade talks back and may even conclude with a more fruitful outcome than originally discussed. In the meantime, Chinese membership in the RCEP cannot fully substitute the benefits of joining the CPTPP, even though the RCEP includes seven countries that are CPTPP members. For example, CPTPP adopts the “negative list” approach with regard to market access, meaning that all services sectors are considered liberalized by default, such as financial and investment services, except those restricted and prohibited areas. On the contrary, the RCEP adopts that approach in only five non-service sectors: manufacturing, agriculture, forestry, fishery, and mining. Hurdles of China’s Accession to the CPTPP In September, Japanese Economy Minister Yasutoshi Nishimura commented on China’s bid for CPTPP stating that “Japan believes that it's necessary to determine whether China, which submitted a request to join the TPP-11, is ready to meet its extremely high standards.” Among these standards, the most noticeable one for China is labor protection. CPTPP Chapter 19 makes special provisions on labor protection, covering a wide array of topics including labor rights, non-derogation, enforcement of labor laws, forced or compulsory labor, etc. Article 19.3(1) requires member states to “adopt and maintain in its statutes and regulations, and practices” the labor rights dictated in the International Labor Organization Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998). However, China has yet to ratify international conventions protecting labor rights such as The Convention Concerning Forced or Compulsory Labour (1930), Convention concerning the Abolition of Forced Labour (1957), The Freedom of Association and Protection of the Right to Organise Convention (1948), and The Right to Organise and Collective Bargaining Convention (1949). Therefore, it is a challenge for China to accept the CPTPP’s forced labor and freedom of association requirements and right to collective bargaining when there are no explicit domestic law provisions protecting these rights. Additionally, CPTPP Article 28.9 states that labor disputes are subject to CPTPP’s dispute settlement procedures and if the panel finds a party in non-conformity with the agreement, the responding party shall eliminate such non-conformity. If the panel finds that such non-conformity still exists, then retaliatory measures such as suspension of benefits and monetary payments can be applied. Considering China’s different understanding of labor rights and increasing assertiveness on the global stage, China’s willingness to fully abide by these demanding requirements is highly questionable. Nevertheless, the possibility still exists. Vietnam, another socialist country in Asia and a CPTPP member, took a landmark step in 2019 to conform with the CPTPP by adopting a new Labor Code, recognizing the right of workers to form independent unions and to engage in collective bargaining. Vietnam may be an appropriate model for China to follow given their similar political systems and ideology. Additionally, Yang Guohua, one of the most influential international economic law scholars in China and former Deputy Director-General in charge of WTO-related affairs at the Chinese Ministry of Commerce, compared China’s attempt to join the CPTPP with China’s accession to the World Trade Organization (WTO), thinking the former requires sweeping domestic reform but will eventually benefit China as the latter did. Another obstacle for China’s CPTPP bid comes from the US, a non-CPTPP country, in an indirect way. In November 2018, the US signed the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA) with Canada and Mexico, who are both CPTPP members. Article 32.10 of the USMCA reads “Entry by any Party into a free trade agreement with a non-market country, shall allow the other Parties to terminate this Agreement on six-month notice and replace this Agreement with an agreement as between them (bilateral agreement).” In a recent US State Department briefing, the spokesperson stated that the US “expect[s] that China’s non-market trade practices and China’s use of economic coercion against other countries would factor into the CPTPP’s parties’ evaluation as a potential candidate for accession.” Therefore, the USMCA may serve as a tool for the US to deter Canada and Mexico from negotiating with China as it attempts to join the CPTPP. China’s tense relationship with other applicants may also negatively impact its accession process. On September 22, Taiwan, in the name of “The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, announced its formal request to join the CPTPP. A day later, the Chinese Ministry of Foreign Affairs Spokesperson Zhao Lijian stated firm opposition to the request in a policy briefing. However, Japanese Foreign Minister Toshimitsu Motegi’s responses to both applications were slightly different, suggesting greater support for Taiwan over Mainland China. Taiwan aims to acquire its membership ahead of Mainland China. If that happens, Mainland China’s application might be blocked because the Accession Process dictates that approval of membership accession to the CPTPP requires a consensus. Conclusion As the WTO’s Doha round negotiation disastrously failed and the WTO Appellate Body experienced deadlock, the CPTPP’s importance as a trade pact for a region covering over fifty percent of the world population cannot be overstated. Chinese membership in the CPTPP will not only benefit the state but can also boost the world economy. However, before its official membership, some basic questions need to be clarified: How successful would China be in reforming domestic policies to comply with the CPTPP? Where would the Sino-US relationship go? Will China’s application be blocked by other members? All of these questions raise uncertainty about China’s bid for the CPTPP and even the future of the Asia-Pacific. China’s application to join the CPTPP may not be the end of US efforts to economically contain China in the Asia-Pacific, but merely signals the end of the beginning.

Image by Prettysleepy from Pixabay Article by Mugambi Kiai, Gakii Winfred and Sigi W. Mwanzia, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” ― John Stuart Mill, On Liberty This three-part series explores the gag on free speech and the resulting violations and infringements that Kenyan officials meted out to Kenyan individuals by way of two unconstitutional laws: the Computer Misuse and Cybercrimes Act (CMCA) 2018 and the Kenya Films and Stage Plays Act (CAP 222). In Part III of the “Gagging Free Speech” series, we examine the Kenya Films and Stage Plays Act (CAP 222) and how the Kenya Film and Classification Board (KFCB) has applied the law to impose unwarranted restrictions on free expression. Background of CAP 222 CAP 222 was enacted on November 22, 1962 and entered into force on October 1, 1963. CAP 222 is an anachronistic colonial relic that is drastically out of step with modern human rights standards as enshrined in international law and Kenya’s Bill of Rights. CAP 222 is particularly typified by its historically-rooted ability to censor and violate Kenyans’ fundamental right to freedom of expression, rather than to respect, protect, and promote the right. The 2020 Statute Law (Miscellaneous Amendment) Bill, which was tabled before Parliament by Hon. Aden Duale, was one attempt to amend CAP 222, although this was withdrawn because, at the time, the ICT Ministry was in the process of developing the National Film Policy. Concerningly, the proposals sought to expand the definition of ‘film’ which would bring all recordings of any visual images capable of being seen as “moving pictures'' that are distributed, broadcast, or exhibited within the ambit of regulation by the KFCB. This means that videos captured on mobile phones and posted on personal social media accounts would have been open to scrutiny by the KFCB. Application of CAP 222 A few examples, listed below, provide insight into how the law has been applied by the KFCB: In January 2014, the KFCB banned the movie The Wolf of Wall Street for “extreme scenes of nudity, sex, debauchery, hedonism and cursing.” Relatedly, in October 2014, following the release of Kenyan film Stories of Our Lives, depicting Kenya's LGBT community, the KFCB barred the film for “obscenity, explicit scenes of sexual activities, and [for promoting] homosexuality, which is contrary to [Kenya's] national norms and values.” In December 2015, KFCB banned beer and contraceptive advertisements from airing during the “watershed period” between 5 a.m. to 10 p.m., unless granted explicit approval from the board. The ban was extended to “advertisements and commercials that feature sexual innuendos and sexually suggestive scenes,” as well as those that “glamorise lifestyles and behaviours such as homosexuality, promiscuity, and juvenile delinquency.” The KFCB used this rationale to ban a Coca-Cola advertisement containing a passionate kissing scene on the grounds that it “violated family values.” In January 2016, the KFCB termed the advent of Netflix into Kenya a “threat to national security” and a “threat to Kenyan moral values.” In June 2017, the KCFB ordered a ban on six cartoons airing on Cartoon Network Africa, Nickelodeon Africa, and Nicktoons Africa for allegedly promoting LGBT themes to minors. In April 2018, the KFCB banned a film Rafiki due to alleged homosexual themes depicted in its content. The ban was criticized for stifling Kenyans' creativity. This is the first Kenyan film to be selected to air at the Cannes Film Festival. This record demonstrates fundamental flaws in the content and application of the Act. First, limitations on free speech under Articles 24 and 33 of the Kenya Constitution do not include grounds such as “indecency,” “immorality,” and “obscenity.” The KFCB’s reliance on these terms to restrict free speech therefore has no constitutional backing. Second, the “freedom of artistic creativity” that Article 33 (1)(b) of the Constitution explicitly protects does not allow another person’s insight to be factored into the production of an artist's piece. Hence, the artist is not obligated to expunge words or scenes that another may consider “gross,” “indecent,” or “obscene.” The UN Special Rapporteur in the field of cultural rights recommended three key approaches to safeguard the freedom of artistic creativity in her 2013 report: first, that “States should abolish prior-censorship bodies or systems where they exist and use subsequent imposition of liability… and exclusively by courts of law”; second, prior censorship should be used only to prevent the imminent threat of grave, irreparable harm to human life or property; and third, that “classification bodies or procedures may be resorted to for the sole purpose of informing parents and regulating unsupervised access by children to particular content, and only in the areas of artistic creation where this is strictly necessary due in particular to easy access by children.” The upshot? The KFCB and CAP 222 operate in contravention of international and national law, with the legitimacy of the KFCB itself being called into question. The same could be said of its CEO, Ezekiel Mutua, whose conduct within this context is wholly objectionable as a serial violator of the Constitution. Mutua’s mission statement on his official Twitter account reads, “To protect children from harmful content.” However, the terms “harmful content” and “dirty content” do not appear once in the text of CAP 222, raising questions and concerns about from where Mutua derived this mandate. Were he a state officer, Mutua would be, ipso facto, totally unfit to hold public office under Chapter 6 of the Constitution. He has violated his authority, by failing to act according to, and in line with, the Constitution; he has failed to promote public confidence in the integrity of the KFCB; and he has abused his powers. Mutua has also not been accountable to the public for the KFCB’s decisions and actions. For example, the statement which the Board issued explaining the arrest of Eric Omondi made a mockery of the high standards of objective accountability demanded by the public. Under Article 10, Mutua has violated the Constitution by serially behaving in a manner that egregiously undermines Kenya’s national values and principles of governance which include, among others, the rule of law, participation of the people, human dignity, inclusiveness, equality, human rights, non-discrimination, protection of marginalized groups, integrity, transparency, and accountability. Political figures often forget that power is short-lived, and that the instruments of oppression they use against citizens can eventually be turned against them. Achieng Oneko, a former Kapenguria Six political detainee alongside Jomo Kenyatta, and others, including the then-Minister for Information and Broadcasting in the Jomo Kenyatta government, once remonstrated with journalist Alistair Matheson and stated, “Matheson, you must never forget we never closed the detention camps after independence.” Paradoxically, Oneko would be one of the people that former President Moi released from political detention on assumption of office in 1978. More recently, Moses Kuria and Ndindi Nyoro in 2017 called on the police to use force to quell opposition-supporting protests, despite the fact that all evidence pointed to the police brazenly engaging in egregious violations of human rights against this group. Today, cast off from the “safe” moorings of the harbor of the Jubilee Party, we hear the same politicians loudly lamenting that the police have “gone rogue” and are illegitimately and illegally harassing them. Which is of course true, but look at what happens once the shoe is worn on the other foot. To condone or enable the violation of fundamental human rights in the name of political convenience or expediency, or simply because it accords with our views about a certain group of people or certain practice, is truly perilous. As the American Civil Liberties Union has noted, “[l]ike a poisonous gas, once the wind shifts, the gas will waft towards your direction and harm you as well.” Authors All three authors work with ARTICLE 19 Eastern Africa. Kiai is the Regional Director; Gakii is a Program Officer, Civic Space; Mwanzia is a Program Officer, Digital.

Image by Prettysleepy from Pixabay Article by Mugambi Kiai, Gakii Winfred and Sigi W. Mwanzia, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” ― John Stuart Mill, On Liberty This three-part series explores the gag on free speech and the resulting violations and infringements that Kenyan officials meted out to Kenyan individuals by way of two unconstitutional laws: the Computer Misuse and Cybercrimes Act (CMCA) 2018 and the Kenya Films and Stage Plays Act (CAP 222). To understand the gag which the Computer Misuse and Cybercrimes Act (CMCA) 2018 places on the right to free expression, we must first cast our gaze backwards and review its history and purpose. Background of the CMCA Underpinning the amendments to the Kenya Information and Communications Act, 1998 (KICA) in 2013, via the Kenya Information and Communication Amendment Act (2013), was the recognition that Kenya lacked a comprehensive cybersecurity law. The 2013 amendment led to the restructuring of the then Communications Commission of Kenya into the Communications Authority of Kenya (CA). Shortly thereafter, in 2014, two different government bodies released three legal and policy responses. These included the Office of the Director of Public Prosecutions’ draft Cybercrime and Computer-related Crimes Bill, and the ICT Ministry’s National Cyber Security Strategy and National ICT Masterplan (2014-2017). Two years later, three bodies released competing laws and regulations, including the ICT Ministry (Computer and Cybercrime Bill (2016)), the CA (Kenya Information Communications (Cyber-Security) Regulations 2016 (CA Regulations)), and the Senate (Cybersecurity and Protection Bill (2016)). Each organ invited and accepted comments from the general public. In 2018, the ICT Ministry’s bill was deliberated, amended, and approved exclusively by the National Assembly. On May 30, 2018, the CMCA was operationalized, with stakeholders flagging unconstitutional provisions in the text of the law that would impact free speech. The CMCA’s long title states that the purpose of the law is to provide for “offences relating to computer systems; enable timely and effective detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes; facilitate international co-operation in dealing with computer and cybercrime matters; and for connected purposes.” There was a pressing need to address cybersecurity and cybercrime issues in Kenya. However, these different legal and policy processes revealed that competing interests existed at the Executive and Parliamentary levels, which prevented coordination between government agencies. In turn, (cue, mischief number one) each entity spent taxpayer money and the public wasted time and resources contributing to processes which were either withdrawn (such as the Senate Bill) or simply faded away (such as the CA Regulations). This brief background also acts as a precursor to recognizing that the law-making process codifies principles and ideas for the protection of the general public, rather than for the punishment of individual residents in the Republic or the protection of select groups. Mischief in the Hansard Reports We combed through the Hansard reports with one question in mind: whose best interest were Kenyan legislators protecting? Some illustrative comments in the Hansard from members of the National Assembly reveal the mindset of Kenyan leaders during parliamentary deliberations on the Bill. On fake news, Hon. Maanzo stated: ‘now there are electronic newspapers, which just run on rumours and fake news’. On pornography, Hon. Aden Duale warned: ‘Our children are not safe because they can access and watch nude photos and pornography videos. We must protect the family. We must protect our families. Protecting the family starts with our children. We should only allow systems that bar access to child pornography or any type of pornography’. On cyberstalking and bullying, Duale lamented: ‘we are the greatest victims of cyber stalking and bullying. We are normally threatened’. On WhatsApp groups, Duale declared: ‘If you are [an] administrator of a WhatsApp group and you are watching me, by the time this Bill is signed into law, there will be very few administrators of WhatsApp groups.’ The leaders’ statements reveal extensive mischief in Kenya’s legislative history after the enactment of the country’s transformative Constitution, and demonstrate that the ‘best interests’ the legislature was protecting were those of the majority of members of the National Assembly. The National Assembly’s comments evince an intent to curb content affecting and ‘depicting Members and leaders negatively’ and motivated by an expansion of ‘national security’ powers to the State. This flies in the face of constitutional edicts prescribing Parliament’s role. Under Article 94 of the Constitution, Parliament (including the National Assembly and the Senate) derives its legislative authority from ‘the people’, ‘manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty’ and is mandated to ‘protect’ the Constitution while promoting the democratic governance of the Republic. However, the Hansard reports revealed a flagrant disregard for this constitutional mandate, with members of the National Assembly ignoring judicial pronouncements protecting the Constitution, thus watering down its protections. For example, the House did not address the draft bill’s failure to define ‘national security’ and potential to provide the State with ‘dangerous carte blanche powers.’ One of the most alarming examples of Parliament’s gag on free speech was the failure to address an observation by two National Assembly members that ‘the offence of publishing false or misleading data or information’ was comparable to a provision (criminal defamation) that was declared an unconstitutional violation of Article 33 of the Constitution in 2017. For context, the offence of criminal defamation under Section 194 of the Penal Code, which was invalidated in the 2017 Jacqueline Okuta & another v Attorney General & 2 others case, reads as follows: "Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel." (emphasis added). Section 23 of the CMCA, which Kenyan legislators opted to retain, thereby prohibiting the publication of ‘false information’ and effectively re-introducing criminal defamation in Kenya, provides: “A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence…’ (emphasis added). Contravening this provision attracts disproportionate civil and criminal sanctions, including a maximum fine of 5 million shillings (USD 45,943), imprisonment of up to 10 years, or both. In 2020, ARTICLE 19 Eastern Africa documented a number of issues with the provision. It found that Section 23 of the CMCA: a) effectively re-introduced criminal defamation in Kenya, revealing that Kenyan legislators contravened the judicial pronouncement in the Jacqueline Okuta case. Criminal defamation provisions, much like the invalidated Section 194 of the Penal Code, are hinged on criminalising any damage to the reputation of a person. In 2002, UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression noted that ‘criminal defamation is not a justifiable restriction on freedom of expression and called for the abolition of all criminal defamation laws, and their replacement, where necessary, with appropriate civil defamation laws’; b) led to the targeted intimidation, harassment and arrest of more than six Internet users who either (i) created and uploaded online content commenting on Kenya’s political situation and detailing corruption scandals or (ii) uploaded posts countering the government’s official COVID-19 narrative. These individuals include bloggers, editors, citizen reporters, content creators, and politicians; and c) was arbitrarily misused by one arm of the National Police Service, namely the Directorate of Criminal Investigations (DCI). We documented instances where allegedly offending posts and/or websites have been pulled down and/or temporarily disabled whilst individuals were in the DCI’s custody. Individuals who were in DCI custody told ARTICLE 19 Eastern Africa that the DCI officers placed direct pressure on them to either edit the content of articles or pull-down articles, in their individual capacity or via website administrators. Other individuals were directed to ‘desist from sharing any coronavirus related information’ on social media handles or ‘risk being re-arrested’ and having bond terms cancelled. ARTICLE 19 noted that restricting freedom of expression on the basis that the information shared is “false” is not a legitimate interest under international human rights law. This amounts to the creation of a legal “duty of truth” which, in turn, limits the free flow of information. Permitting States to decide what is ‘true’ or ‘false’, as illustrated above, sanctions state-sponsored censorship and state-controlled information. Notably, the sharing of “false information” serves a social purpose, as demonstrated by the creation and publication of parodies, which falls squarely in the remit of creative and artistic expression. The CMCA’s Unending Days in Court Since 2018, concerned stakeholders have challenged the CMCA, both on the process of its enactment and the substance of some provisions in the Act. In the petition lodged at the High Court by the Bloggers Association of Kenya (BAKE) and supported by ARTICLE 19 Eastern Africa, 26 provisions of the Act, including sections 5, 16-17, 22-24, 27-29, 31-41, and 48-53, were challenged for threatening the rights to expression, media freedom and privacy. During the pendency of the matter in court, the provisions were suspended and could not be used to arrest and charge people. Unfortunately, on February 20, 2020, Justice Makau dismissed the petition, declaring that the 26 provisions were constitutional and the Act was valid in its entirety. Attempts by the Law Society of Kenya to stay the orders of the High Court and continue the suspension of the 26 provisions while awaiting the judgement of BAKE’s appeal failed. In a different petition by the Senate against the National Assembly, the validity of 23 laws including the CMCA was challenged for failing to abide by the procedural and constitutional requirements for the adoption of laws. The Speakers of both Houses must first establish whether a bill is one concerning counties, and, if in the affirmative, the bill should be deliberated on by the two Houses. In October 2020, the High Court declared the CMCA together with 22 other laws, ‘unconstitutional, thus null and void’. However, the order nullifying these laws was suspended for 9 months to give both houses an opportunity to regularize the laws. The nine-month period lapses in July 2021. These pronouncements have effectively rendered the CMCA fully operational, which explains the spike in the number of arrests and charges targeting journalists, media practitioners, students, and online users generally. Many individuals have been threatened or charged with the ‘publication of false information’ provision, as enforcers have targeted content that is critical of the government, politicians, high-profile individuals or content which exposes corruption. Influential citizens have also used the CMCA as a tool to harass content creators and bloggers. While we are cognizant that cybercrimes have affected Kenyan legislators and parliamentarians, and that the CMCA contains some provisions that are necessary to combat those crimes, the protection of the reputations and needs of a select few cannot trump the protection of human rights. Civil actions are more appropriate than are criminal sanctions due to the extraordinary potential the latter has in stifling free speech in a free and democratic society. Despite a need to update the Defamation Act, any person may still invoke it to protect their reputation. For example, the Defamation Act provides legal persons with the ‘right of reply to any factual inaccuracy affecting them which has been published in a newspaper and which damages one’s character, reputation or good standing.’ The law also provides protection against slander which affects one’s official, professional or business reputation and title, amongst others. Attempts to Expand the CMCA We will now examine the amendments that Hon. Aden Duale announced in March 2021 to legislate morality and expand the CMCA provisions concerning pornography. In Kenya, “legislating morality” has been equated with “legislating citizens’ private consenting behavior,” often around matters regarding sexuality and the consumption of pornographic content. As a people who profess multiple religious belief systems and to whom the terms “family values” and “tradition and custom” carries societal weight, it is not uncommon to be bombarded with rhetoric that blurs the distinction between public and private morality under the guise of “protecting children.” Pornography: To What Extent Can We Legislate Morality? In its current state, the CMCA is riddled with disproportionate content-related offenses that are vague, ambiguous, and incompatible with international law as they permit the silencing of legitimate expression. Despite this, Duale recently announced that he was going to introduce amendments to the CMCA to “ban pornography” ostensibly to “protect our children.” The CMCA defines 'pornography’ as “the representation in books, magazines, photographs, films, and other media, telecommunication apparatus of scenes of sexual behaviour that are erotic or lewd and are designed to arouse sexual interest.” The broad definition bestows wide discretion upon law enforcement officials to subject parties including hawkers peddling Mills and Boon novels, anyone producing, distributing or watching Gengetone videos, and even individuals in the creative and artistic communities who use nudity and depictions of sex to express their artistic, journalistic, and academic freedoms, to the law. Attempts to expand pornography restrictions in the CMCA are not new. During deliberations on the bill, stakeholders objected to general pornography restrictions and pushed solely for the criminalization of child pornography. As indicated in Section 24 of the CMCA, legislators agreed that providing for narrow, rather than general, restrictions on pornographic content was consistent with international law. Hon. Aden Duale actively participated in the deliberations on the bill at the National Assembly level, but was unsatisfied with the ultimate outcome. In fact, Duale still continues to push for more State powers capable of supervising the things Kenyans do and the content they watch in the confines of their own bedrooms. Duale’s persistence on the matter raises a few age-old questions: who determines morality in Kenya? Is it the role of society, the legislature, or the judiciary? Where do we draw the line when laws and proposals attempt to interfere with our individual liberty and freedoms? Is pornography a cause or effect of our innate sexual thoughts, desires, and interests? Even before this amendment is tabled in Parliament, ARTICLE 19’s stance remains: we have challenged, and will continue to challenge obscenity laws that are based on eminently subjective definitions and rely on the “gut-feeling” and singular traditions (religious, philosophical, or social) of the government of the day. Under international law, pornography is not one of the types of expression that must be prohibited, unlike child pornography which is expressly prohibited under the United Nations Convention on the Rights of the Child, and the 2000 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Any restrictions limiting the right to freedom of expression must be guided by the national constitution and international law. The United Nations Human Rights Committee affirmed that any restrictions on content which rely on the “protection of public morals” or the “public decency” arguments must be based on a broad, rather than singular, understanding of what “public decency” and “public morals” means. These restrictions must also be subjected to the tests of legality, legitimacy, proportionality, and necessity. In closing, even if a State opts to generally prohibit pornography, expression need not be criminalized. Criminalization is reserved only for prohibited speech which satisfies a high threshold permitting restrictions on the right to freedom of expression. In the next part of this “Gagging Free Speech” series, we will examine the Films and Stage Plays Act (CAP 222) and the string of abuses and violations of free speech that have been meted out before and during Ezekiel Mutua’s tenure at the Kenya Film and Classification Board. Authors All three authors work with ARTICLE 19 Eastern Africa. Kiai is the Regional Director; Gakii is a Program Officer, Civic Space; Mwanzia is a Program Officer, Digital.

Image by Prettysleepy from Pixabay Article by Mugambi Kiai, Gakii Winfred and Sigi W. Mwanzia, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” ― John Stuart Mill, On Liberty This three-part series explores the gag on free speech and the resulting violations and infringements that Kenyan officials meted out to Kenyan individuals by way of two unconstitutional laws: the Computer Misuse and Cybercrimes Act (CMCA) 2018 and the Kenya Films and Stage Plays Act (CAP 222). Prologue: Expanding Appetite to Stifle Freedom of Expression In March 2021, parliamentary member Hon. Aden Duale announced that he would propose CMCA amendments to Parliament that would expand the government’s regulation of pornography. Duale’s announcement is concerning given the existing codification of various content-related offences, like criminal defamation, that violate human rights in the law. Simultaneously, abuse of the provisions of CAP 222, a colonial-era relic, continue to stifle freedom of artistic and creative expression. The emboldened chief executive officer of the Kenya Film and Classification Board (KFCB), Ezekiel Mutua, is spearheading the restrictions under the guise of ‘protecting children from online harm.’ State officials and agents have misused and abused the text of the CMCA and CAP 222. They have targeted individuals for expressing themselves on social, economic, and political challenges in Kenya. This series of articles will illustrate how state and private actors are using the CMCA and CAP 222 to arbitrarily intimidate, harass, summon, detain and charge individuals. Both of the aforementioned laws are subject to proposed amendments that would effectively give the government unimaginably broad and unfettered power to shepherd the truth using criminal sanctions. Episode One On August 18, 2020, officers from the Directorate of Criminal Investigations (DCI), Operations Branch arrested Milton Were and Jack Okinyi. Before booking Were and Okinyi at Capitol Hill Police Station, the officers drove them around Nairobi for hours. Before and during the arrests, the officers reportedly entered Were’s private home without a warrant, assaulted one of them, and confiscated their electronic gadgets, amongst other human rights violations. Two days later, Were and Okinyi were finally brought to Kibera Law Courts and charged with the ‘publication of false information’ under Section 23 of the CMCA. The provision enacts a legal duty of “truth”–an obligation individuals bear to publish information that, according to the State, is objective, reliable and factual–and attracts a fine not exceeding 5 million shillings (USD 45,176) or imprisonment of up to ten years, or both. Authorities arrested and charged Were and Okinyi because of a blog post, which was taken down, that detailed a billion-shilling road tender corruption scandal. Episode Two On March 11, 2021, KFCB Compliance Officers and DCI officers arrested prominent Kenyan comedian Eric Omondi hours after he had uploaded his reality show “Wife Material” on his social media accounts. The KFCB claims that Omondi violated Section 12 of CAP 222 which prohibits the exhibition, distribution, or broadcast of any film without registration or certification by the KFCB. A violation of CAP 222 Section 12 is punishable by a 100,000 shillings (USD 903) fine or imprisonment of up to five years, or both. The lived experiences of Milton Were, Jack Okinyi, and Eric Omondi offer a glimpse into the consequences of vague and imprecisely drafted pieces of law that are clearly in conflict with the Constitution of Kenya. Article 33 of the Constitution is clear: “every person has the right to freedom of expression which includes (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.” This right may be limited only in exceptional circumstances such as curtailing incitement to violence. However, Article 24 of the Constitution provides that these exceptional circumstances are subject to a three-part test of legality: legitimacy, necessity, and proportionality. Section 23 and Section 12 of the CMCA and CAP 222, respectively, are drops in the ocean of the powerful and discretionary instruments state authorities possess. The two laws do not meet the high threshold for limiting the right to free expression and, consequently, neither passes constitutional muster. The provisions are overbroad and provide room for abuse by the police, failing the test of legality. Flashback Under the guise of law-enforcement, Kenyan authorities now rely on authoritarian readings of the law and deploy tyrannical practices to stifle public commentary on social and political issues with wanton impunity. This bad faith law enforcement amounts to a frontal and brutal assault on the Constitution and egregiously violates the social contract between the State and citizens which balances the power dynamic between the two. These affronts are reminiscent of previous Kenyan human rights violations. In 1990, Presbyterian Church of East Africa clergyman Reverend Lawford Ndege Imunde was arrested, prosecuted, and jailed under sedition laws for simply penning his personal thoughts about Robert Ouko’s death in his personal diary. Just like sedition, prior restraint and content-related provisions, such as those exercised over Omondi and Were and Okinyi respectively, have a notoriously problematic challenge: they both create powerful and subjective instruments for authorities to determine what is and what is not decent, moral, or truthful. Their discretion extends into the thoughts and activities which we indulge privately and in the confines of our bedrooms. The source of this unfettered discretion is twofold: the provisions are overly broad and law enforcement powers remain unchecked. The provisions do not define any specific conduct which must be regulated and restricted, allowing unchecked law enforcement officers to apply them as they see fit in politically motivated cases. At this point, it is necessary to look at the history and purpose of the CMCA and CAP 222, and their relation to the right to freedom of expression. We will also examine the government’s proposed expansion of its content regulation powers in the pornography field, and look into Ezekiel Mutua’s violations of free speech during his tenure at the Board. Authors All three authors work with ARTICLE 19 Eastern Africa. Kiai is the Regional Director; Gakii is a Program Officer, Civic Space; Mwanzia is a Program Officer, Digital.

Ever Given by Kees Torn Article by Marcelo Molina Villalobos, During the six days that elapsed between the 23rd and the 29th of March 2021, the world stood in awe as the Ever Given, a container ship with a carrying capacity of 20,000 TEU, became stuck while transiting the Suez Canal. Now that the ship has been freed, a struggle just as difficult but different in kind arises: the determination of responsibility for the financial damage the blockage caused, estimated to amount to billions of dollars. In this regard, multiple countries have launched potentially contradictory investigations, including Egypt’s Suez Canal Authority [“SCA”] and Panama’s Maritime Authority probes. Taiwanese nationals have also initiated discussions, although not procedures, about the incident. While vessels have been stuck in the Suez Canal before, this blockage is particularly complex because it poses challenges with respect to jurisdiction and state sovereignty. The Ever Given, a ship owned by a Japanese company, operated by a Taiwan-based conglomerate, and flying the flag of Panama was stuck in Egyptian territorial waters. This blog will focus on the use of a Flag of Convenience and attempt to shed light on the legal implications of ships flying a flag that is diverse from the country of their owners. Flags of Convenience Under International Law International Law has long recognized the right of states to fix conditions for granting their nationality to ships. The right is codified in Article 91 of the United Convention of the Law of the Sea [“UNCLOS”], which is currently in force for 168 Parties; but the right has been well-established since as early as 1958, when it was incorporated in Article 5 of the Convention on the High Seas. However, Article 91 of UNCLOS qualifies the right, providing that “there must exist a genuine link between the State and the ship.” The “genuine link” language has been a source of controversy in scholarly discussions, because, in practice, many States operate as “open registries” that place minimal or no restrictions on what ships may fly their flag, and therefore possess its nationality. The common practice has become known as the use of Flags of Convenience. Article 91’s lack of guidance on what would constitute a “genuine link” is problematic. Moreover, as stated by professor Robin Churchill, neither the application of the rule of general interpretation contained in Article 31 of the Vienna Convention on the Law of Treaties, nor the recourse to the travaux préparatoires of UNCLOS, shed light on the meaning of “genuine link”. Article 91’s ambiguity has led a majority of commentators to find a genuine link as long as the Flag State–that is, the State who allows certain ships to fly its flag–is able to exercise its jurisdiction. Case law of some international tribunals have mirrored the majority view on jurisdictional capacity giving rise to a genuine link. In one such case, M/V "SAIGA" (No. 2), the International Tribunal of the Law of the Sea stated: “the purpose of the provisions of the convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.” The popular view expressed in the tribunal’s holding suggests that use of Flags of Convenience is not, per se, unlawful under international law, but rather is subject to Flag State’s jurisdiction. UNCLOS defines the exercise of jurisdiction not only as a right, but also primarily as a duty. Thus, the State of Panama, which is responsible for 16% of the world’s fleet-carrying capacity, is obligated to exercise its jurisdiction upon all the vessels that fly its flag. Flags of Convenience and the Exercise of Jurisdiction Article 94 of UNCLOS establishes (1) the obligation of every State to “exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag,” and (2) a series of duties relating to the registration and maintenance of ships. Most importantly, it also mandates States to apply their internal law over every ship that flies their flag, as well as each relevant ship’s masters, officers, and crew. And even though one could argue that these obligations only apply in the high seas, they are nevertheless fundamental for the understanding of the concept of nationality of ships, which is extensively used elsewhere in UNCLOS. Article 94, thus, assists in the reading of Articles 27 and 28 of the same Convention, which limit the exercise of the coastal State’s exercise of criminal and civil jurisdiction, respectively. Assuming that the case of the Ever Given relates to the latter, Article 28, paragraph 2 is relevant. The provision states that “the coastal State may not...arrest the ship for the purpose of any civil proceeding”. However, paragraph 3 further states: “paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws...to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.” Since its refloatment on March 29–and as of April 7–the Ever Given has remained anchored in the Great Bitter Lake, alongside the Suez Canal, pending the investigation announced by the SCA. According to UNCLOS Article 28, paragraph 3, Egypt would be authorized to withhold the ship, carry out its investigation, and eventually initiate civil proceedings. The problem is that Egypt may not have the right to withhold the Ever Given, as UNCLOS Articles 17 and 19 generate an obligation to respect the ship’s innocent passage in its territorial sea. The Article 17 and 19 obligation is especially relevant in this case, because Article 18 clarifies that “passage includes stopping and anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress.” Are force majeure or distress plausible narratives for the grounding of the Ever Given? There is certainly a case for making that claim, as the ship was pulled to the Great Bitter Lake for inspection and to evaluate its seaworthiness. With the SCA so adamant to carry out an investigation, this already delicate situation could turn into a very fragile one. However, the united effort between implicated states diminishes the likelihood of a diplomatic incident. In fact, the Panamanian authority has declared that it intends to cooperate with its Egyptian counterpart, and it has not officially complained about the detention of the Ever Given. One might argue that Panama’s investigation is unlikely to result in an effective exercise of its jurisdiction. Flags of Convenience offer shipowners an opportunity to cut monetary and regulatory costs, resulting in problems such as sub-standard shipping and over-exhaustion of crews. Panama is not exempt from this characterization, and although it has improved its flag performance in recent years, grave incidents involving its ships are not infrequent. Indeed, it is possible that Panama, in investigating the incident, intends only to dispel doubts about the genuine link between the ship and the State in order to avoid problems regarding the flight of its flag. Egypt apparently faces no obstacles to the exercise of its jurisdiction as a Coastal State in this matter. However, any complaint Panama–or any stakeholder interested in bringing the matter to Panamanian courts–might raise could complicate this task. Moreover, the very fact that the ship is registered in Panama could make seeking compensation from the actual owners of the vessel very difficult, as they are nationals from third states, some of which are not even parties to UNCLOS. Conclusions: Beyond the Canal The case of the Ever Given illustrates the complexity of the interactions that occur between Flag and Coastal States, or even more perplexing, the status of a ship flying a Flag of Convenience being the subject of an incident occurring in another state’s territorial waters. While it is unlikely that this situation will develop into a diplomatic incident, similar events remain probable. Indeed, the proliferation of even bigger ships flying Flags of Convenience could lead to incidents which might prove to be just as complex from a jurisdictional point of view. Author Marcelo Molina Villalobos is a recent graduate from Universidad de Chile’s Law School. There, he collaborates in several courses of the International Law Department and is actively involved in the Jessup Moot Court Competition.

Photo from Piqsels Article by Francesco Arreaga, On August 5, 2020, former acting Attorney General Sally Yates stated during a Senate Judiciary Committee hearing, “We've all heard Russian interference in our election so much that it's kind of lost its shock value...[but] the Russian government had used cyberattacks, the strategic release of stolen information, and a coordinated campaign to weaponize social media against American citizens.” Senior U.S. intelligence agents believed that California was one of seven states in which “Russian operatives had compromised state websites or databases” prior to the 2016 election. These cyberattacks continue to this day. For example, this March, the National Intelligence Council issued a report describing how Russia conducted influence operations to denigrate President Biden’s candidacy as well as the Democratic Party, undermine public confidence in the electoral process, and exacerbate sociopolitical divisions. Further, Russia is suspected of being behind the recent cyberattack targeting federal agencies and private corporations. Reports indicate that this cyberattack compromised the Justice Department, Department of Treasury, Commerce Department, Department of Homeland Security, the Pentagon, intelligence agencies, nuclear labs, and Fortune 500 companies. The UN Charter creates a system whereby the Security Council is responsible for resolving international conflict. But what happens when a permanent member of the Security Council that has the power to veto resolutions is the actor engaging in cyber election interference against another nation? This article does not deal with the question of how a nation should respond to election interference via cyberspace; it simply deals with the question of whether a nation can respond to cyber election interference under the UN Charter. The only recourse that a nation has to defend itself under this circumstance is through Article 51 of the UN Charter. Article 51 states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Some international law scholars construe Article 51 as barring a nation from responding to election interference via cyberspace through self-defense. This blog utilizes Russia’s 2016 cyber election interference in the United States as a case study to argue that a nation should be able to act in self-defense against cyber election interference under Article 51 of the UN Charter. The UN’s Purpose Article 1 of the UN Charter outlines the four fundamental purposes of the United Nations. First, maintaining international peace and security; second, developing friendly relations among nations that are grounded in the belief that people must have equal rights and self-determination; third, achieving international cooperation in promoting respect for human rights and fundamental freedoms for all; and fourth, being the center for achieving these common goals. These four purposes are interconnected and should not be conceived of independently from one another. This is especially true for the first two purposes of the charter because international peace is impossible if one State does not recognize the equal rights and self-determination (political sovereignty) of the people of another State. In other words, international peace exists in conjunction with principles of liberty, equality, and self-determination. Cyber Election Interference Threatens Political Sovereignty A U.S. Senate Foreign Relations Committee report details how the Russian government attempted to influence “democracy in the United Kingdom through disinformation, cyber hacking, and corruption.” For example, in the period leading to the Brexit referendum, a Russian organization was “actively posting about Brexit” in an attempt to influence the vote and magnify social discord. In 2017, a Russian cyberespionage group launched phishing attacks against French presidential candidate Emmanuel Macron's campaign. Days before the runoff vote in France’s presidential election, hacked emails from Emmanuel Macron’s campaign were leaked online in an attempt to influence the result of the election. An indictment by Special Counsel Robert Mueller against several members of Russia’s military intelligence agency describes how, in 2016, Russia “conducted large-scale cyber operations to interfere with the 2016 U.S. Presidential election.” Russian agents hacked into the emails of multiple Hillary Clinton campaign employees, including the campaign chairman. They also infiltrated the computer networks of the Democratic National Committee and Democratic Congressional Campaign Committee to steal emails and documents. Russia also engaged in a targeted information warfare campaign through social media by creating fake social media accounts to instigate Americans to join a flash mob opposing Secretary of State Hillary Clinton’s presidential candidacy. Furthermore, a report by the Senate Intelligence Committee extensively details how Russian operatives specifically targeted African American voters on social media. The Tallinn Manual on the International Law Applicable to Cyber Operations explains that internal sovereignty includes the “authority of a State to independently decide on its political, social, cultural, economic, and legal order.” Cyber operations that disregard another State’s “exercise of its sovereign prerogatives constitute a violation of such sovereignty and are prohibited by international law.” Russia’s cyberattacks during America’s 2016 presidential election disregarded the UN Charter’s purposes of maintaining international peace or respecting the right of self-determination, and violated America’s internal sovereignty. Whether a State May Act in Self-Defense when Cyber Election Interference Occurs One view of cyber election interference is that these acts exist in a “gray zone” of international law. Professor Gary Corn explains how hostile activities in the “gray zone” of international law occur in “the far more uncertain space between war and peace.” They are understood as actions that are aggressive and rise above normal but are “deliberately designed to remain below the threshold of conventional military conflict and open interstate war.” International actors exploit this gray zone in the law because they alter the status quo while not clearly violating international law or starting war. A second view, that of Professor Michael N. Schmitt, suggests that Russia’s cyber election interference “is not an initiation of an armed conflict” and that, therefore, the U.S. cannot respond in self-defense under the UN Charter. It is “impossible to draw definitive red lines regarding cyber election meddling in the context of the territorial aspect of sovereignty, except with respect to situations causing physical damage or at least a significant impact on functionality.” Scholars also point to how armed attacks are typically those that can cause death. For example, international law experts who contributed to the Tallinn Manual on International Law Rule 71(5) explain that a critical factor in deciding whether a cyber intrusion is an armed conflict is determining whether the cyber operation is analogous to actions “otherwise qualifying as a kinetic armed attack.” Moreover, the cyber operation must involve the use of a cyber weapon, defined in the Tallinn Manual on International Law Rule 103(2) as “cyber means of warfare that are used, designed, or intended to be used to cause injury to, or death of, persons or damage to, or destruction of, objects, that is, that result in the consequences required for qualification of a cyber operation as an attack.” A final view is that a nation may respond in self-defense when facing cyber election interference. President Joe Biden has characterized foreign election interference as a threat to “America’s sovereignty, democratic institutions, and national security.” He has asserted that he “will treat foreign interference in our election as an adversarial act” and make full use of “executive authority to impose substantial and lasting costs on state perpetrators.” These assertions are in line with the long held view in the United States that Article 51 of the UN Charter may be interpreted to mean that the country may act “in self-defense in response to any amount of force by another State.” A State Must be Able to Act in Self-Defense in the Face of Cyber Election Interference The creation of cyberspace and the advancement of technology have fundamentally changed the methods nation states may use to violate the sovereignty of other nations or pose threats to international peace. Sovereignty is the first principle outlined in the UN Charter, which declares that the “organization is based on the principle of the sovereign equality of all its Members.” The fourth principle of the United Nations expounds on the importance of sovereignty by establishing that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Finally, sovereignty is connected with the U.N. Charter’s second purpose, which is to foster relations among nations based on respect for equal rights and the self-determination of people. Russia’s interference in the 2016 American presidential election threatened the political integrity and sovereignty of the United States and contradicted the principles and purpose of the UN Charter. Any nation must be allowed to defend itself against such an act of aggression. The United States’ interpretation of Article 51 is the only means of upholding the purposes of the UN Charter, especially when cyberattacks are perpetuated by other members of the UN Security Council that can veto UN Security Council resolutions. Even if it were the case that cyber election interference were not considered an “armed attack,” Judge Simma noted in his separate opinion for the Oil Platforms case, that a State is able to respond to an attack that does not reach the “armed attack” threshold of Article 51 of the UN Charter. Importantly, the State being attacked may defend itself “within a more limited range and quality of responses…and bound to necessity, proportionality and immediacy in time in a particularly strict way.” This viewpoint is in line with the International Court of Justice opinion in the Nicaragua case that explained how even though one nation’s actions did not rise to the level of an armed attack, the acts could have “justified proportionate counter-measures on the part of the State which had been the victim of these acts.” Conclusion A nation must be able to respond to hostile acts by international actors that threaten the soundness of its electoral system. This is not only normatively beneficial but also comports with the UN Charter’s purpose. Our perception of international conflict often does not account for the technological advancements that permit cyberspace to be exploited for harmful means. It is critical that we develop an understanding of international law that accounts for the new challenges we face in world affairs. Author Francesco Arreaga (J.D. Candidate, Class of 2021) is a Contributor to Travaux. He has been a member of the Berkeley Journal of International Law since his first year of law school and has enjoyed writing for Travaux. Francesco holds a B.A. in Political Science and Chinese, as well as a minor in Global Studies from UCLA. He is currently the Co-President of the American Constitution Society at Berkeley Law and last year served as the Co-President of the Berkeley Immigration Group. Francesco is passionate about ensuring that the voices of immigrants, working people, and communities of color are represented in government. Currently, Francesco is interning as a law clerk in the U.S. Senate.