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About the Author: Eleanor Iris Gartstein is a first year law student at Berkeley Law with a passion for art history and its intersections with international law. Eleanor's particular interests lie in topics surrounding cultural heritage and art repatriation. “Cultural heritage must be safeguarded as a testimony of the past, but also as a catalyst for peace and cohesion in the future, which the international community has a duty to protect and preserve” -Audrey Azoulay, UNESCO Director-General Russia's Mission Targeting Ukrainian Cultural Identity In April of this year, NBC released an article revealing the mounting evidence that Russian forces have been systematically stealing art and cultural artifacts from Ukraine on a scale reminiscent of the looting during World War II. Substantiating his core declaration that the idea of a separate Ukrainian national identity is illusory, Vladimir Putin has instituted an organized campaign of looting and destruction which specifically targets sites and monuments that epitomize Ukrainian identity. Since Russia’s initial February 24, 2022 invasion of Ukraine, UNESCO has verified damage to 1,702 objects of cultural infrastructure and 295 cultural sites (124 religious sites, 110 buildings of historical or artistic interest, 28 museums, 19 monuments, 13 libraries and one archive). When Putin declared martial law in annexed Ukrainian territories in October of 2022, he effectively legalized the looting of Ukraine’s cultural property. Pursuant to Russian mandate, the decree of martial law grants Russian military forces the power to evacuate items of economic, social, and cultural significance in the name of “preservation.” Eliminating the physical markers of Ukraine’s culture would be synonymous to wiping out their history, conforming to Russian leadership’s view that there is no Ukrainian culture or “real statehood.” This is not the first time large-scale cultural destruction has been used as a military strategy in efforts to weaken community foundations. Art restitution lawyer Chris Marinello analogized this tactic to historical precedents, stating “they are trying to erase Ukrainian identity, just the way the Nazis did.” International Implications: Timeline Historic Policy In response to World War II’s widespread cultural destruction, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was created as the most comprehensive treaty dedicated exclusively to the protection of cultural heritage. The Convention, to which the Russian Federation is a signatory, requires states to “refrain from any act of hostility” directed against movable and immovable property of great importance to its place of birth. Moreover, it decrees any state occupying another state’s territories to preserve and safeguard the cultural valuables within its occupation. The Convention seeks to respect cultural property as the common heritage of humankind. Russia’s military actions have strongly contradicted this principle. Accordingly, the destruction of cultural heritage promulgated by Russian forces has been labeled as a violation of the 1954 Hague Convention and a potential war crime. February 2022: Ukraine’s Response Ukraine’s Culture Minister, Oleksandr Tkachenko, is amongst the many who have equated the mass removal of cultural property from Ukraine by Russian occupiers to the looting of museums by Nazi Germany during World War II. Citing the Hague Convention, Tkachenko declared Russia’s actions to be in blatant violation of international policy, calling for Russia’s war crimes to be subject to prosecution. His statement concluded by appealing to UNESCO to prevent further actions by Russian forces. July 2023: UNESCO’s Stance Following Russia’s attack on Odesa, home to a World Heritage Site, UNESCO’s Director-General Audrey Azoulay released a statement claiming “this outrageous destruction marks an escalation of violence against cultural heritage of Ukraine. I strongly condemn this attack against culture, and I urge the Russian Federation to take meaningful action to comply with its obligations under international law, including the 1954 Hague Convention.” With this statement, UNESCO clarified its point of view on the matter, standing behind Ukraine in the fight to protect its cultural property. September 2023: Arrest Warrant Issued Not long after Azoulay’s statement, the International Criminal Court (ICC) issued an international arrest warrant for Putin, urging him to stand trial for his alleged war crimes. A briefing report prepared by the NGO Blue Shield International (BSI) made the assertion that the Russian regime has “premeditatively, systematically, and provably” targeted heritage sites in Ukraine. The briefing, titled Assessment of Damage/Destruction of Cultural Heritage Sites in Ukraine, November 22 - August 23, claims there are at least two instances with firm evidence that certain sites have been specifically and intentionally targeted. The first involves a historical museum in Kyiv strongly linked to Ukrainian identity and the second involves a literary museum hit by a missile strike during the Battle of Kharkiv. In both instances, the cultural infrastructure stood far from any nearby fighting and the surrounding buildings remained unharmed, thus providing a strong indication of the deliberate nature behind Russia’s attack on heritage. The briefing goes on to reference thousands of pieces of artworks removed by the Russian secret service in the Kherson region. The report’s claims of war crimes by the Russian Federation remain tentative, however, as a definite determination of the intention behind Putin’s actions and the degree of cultural damage would necessitate further assessment. Simply put, more evidence is needed for the claims to stand up in an international court. If the report is eventually able to withstand judicial scrutiny, it could play a pivotal role in bridging the evidentiary gap to prosecute Putin. Present Day In the interim, as evidentiary support continues to be gathered, the cultural damage to Ukraine continues to rise. Russia’s totalitarian turn in international policy and tribalist regime policies have continued to exacerbate feelings of nationalism in societies across Central and Eastern Europe. With Ukraine’s entire identity under persistent threat as a result, UNESCO and the ICC have pleaded for an end to this decimation of culture.

About the Author: Shubhankar Sharan, a third-year student pursuing B.A. LL.B from Gujarat National Law University. Image by Christian Lue showing the European Union flags. Available here. Introduction The European Union (“EU”) recently announced the phased implementation of the Carbon Border Adjustment Mechanism (“CBAM”) Regulations. CBAM is a price adjustment mechanism for certain goods imported into the EU based on the amount of carbon dioxide emitted during the production of such goods. Broadly, CBAM aims to reduce carbon emission and encourage sustainable production to prevent climate change. Unsurprisingly, it has raised much discontent, especially in India, as the Minister of Power and New & Renewable Energy has highlighted that India may impose retaliatory tariffs in the face of CBAM Regulations. Given the currently disrupted global supply chains and a weak economic recovery rate, the undue risk that CBAM might cause a trade war should be minimized at best. In addition, this is not the first time a European Policy has come under the radar. A 2008 Directive of the European Parliament, which required airline operators to pay emission allowances based on the amount of carbon dioxide released during flights to and from EU airports, had already raised severe criticisms. Several countries, including the United States, India, and China, opposed the Directive and imposed retaliatory measures, including suspending major deals with European aircraft manufacturers. Against this backdrop, this piece attempts to elucidate the legal merits and reasonableness of retaliatory measures against the imposition of the CBAM Regulations, considering the possibility of violations of the World Trade Organisation (“WTO”) provisions and rules. Lastly, the piece puts forth mutual agreement as a tenable alternative to retaliatory measures. Nature of CBAM Regulations The European Commission (“EC”) will be implementing CBAM Regulations in phases. From January 1, 2026, the EU will begin imposing import tariffs on carbon-intensive products. In India, the 20%-35% tariff rates will affect steel and aluminum exporters, as well as producers of fertilizers, cement, and electricity. One major objection from EU trade partners is that proceeds from CBAM will contribute to the EU’s annual budget. This has reignited the debate about the responsibilities of the developed countries in taking responsibility for their previous emissions. The UNCTAD has raised concerns about the European Union tilting trade patterns favoring trade with carbon-efficient countries while neglecting developing countries. In addition to India, China has also questioned the regulations’ compliance with WTO principles, including the Principle of National Treatment and Non-Discrimination. For instance, the regulations run counter to the EU’s commitments towards the Most Favored Nation principle, which refers to discrimination between trading partners selling “like” products. Additionally, the CBAM Regulations potentially violate the ‘Common but Differentiated Responsibilities’ principle (“CBDR”) recognized in the United Nations Framework Convention on Climate Change (“UNFCC”). The CBDR principle ascribes different duties to take climate actions to countries based on their different capabilities. Least-developed Countries have flagged the Regulations as ignorant of varied national circumstances, resulting in disproportionate burdens on them. Further, CBAM Regulations’ potential limit on imports is a violation of Article XI of the General Agreement on Tariffs and Trade (“GATT”). In view of these potential legal discrepancies, the affected countries, including India, have reasons to either initiate retaliatory measures, such as CBAM-like regulations to offset the loss. Dispute Settlement Body and Associated Issues The potential issue highlighted above is sufficient for the affected countries to seek redressal from the WTO Dispute Settlement Body (“DSB”). However, even when a panel report is released after a lengthy process, there is no definiteness about its implementation as the parties have the option of appealing before the Appellate Body (“AB”). It further becomes uncertain considering the recent deadlock in appointing members to the AB. Hence, the appeal would be sent “into the void”. A dysfunctional AB ostensibly extends the timeline of disputes between the parties with no result in sight. Moreover, bearing in mind the costs incurred in facilitating a dispute at DSB, the countries may “take the law into their own hands” without utilizing the WTO proceedings, as expressed by the European Commission. Retaliatory Measures: A Look at the WTO Despite the attractiveness of retaliatory measures, there are distinct drawbacks. Retaliatory measures require express authorization of the DSB, as mentioned in Articles 22.6 and 23.2(c) of the Dispute Settlement Understanding (“DSU”). If authorized, the country can be exempted from complying with the most favored nation (“MFN”) principle and effect discriminatory treatment against other countries, thereby affecting the balance of trade. However, it must be noted that retaliatory tariffs are not mentioned in Article 22.1 of the DSU, which only mentions “compensation,” “suspension of concessions,” and “other obligations.” Instead, the retaliatory tariffs are implied in “suspension of concession” since discussions on “concessions” in former GATT rounds included tariff reductions. To prevent trade distortion and subsequent trade wars, the member countries had agreed not to impose unilateral retaliatory measures unless the arbitrators of the DSB grant permissions to do so, only to the extent as decided. It is further complicated when the country facing retaliation challenges the said measures on the grounds of violation of principles outlined in Article 22.3., which then sends the matter back to arbitration by the original panel. Article 23 of DSU provides the members with a recourse to redressal in case of violation of obligations by countries. For instance, in European Communities – Bananas III, Ecuador was not permitted to initiate retaliatory measures until the damages inflicted by the European Commission’s non-compliance with the DSB Ruling were determined. The underlying purpose of authorization of retaliatory measures is not about punishment but about rebalancing trade levels. In the process before the DSB, the parties first go through mediation. However, if a settlement is not achieved, the parties can move to the WTO for adjudication. After the release of the DSB report, the same can be appealed before the AB. However, in the current scenario, it is a frivolous exercise. Only when there is non-compliance with the Report or continuance of violation of WTO Rules the trading partners can seek remedy in the form of trade retaliation or compensation. Limits of Retaliation Article 22.6 of the DSU outlines the requisites to establish the upper limit of retaliation. Primarily, the amount authorized for retaliation shall not exceed the impairment suffered by the complaining county. Not to mention, the arbitrators in EC – Bananas III (US) have elaborated on the meaning of ‘equivalence’ as mentioned in Article 22.4 of the DSB. In simpler terms, the arbitrators in another case disallowed trade retaliation as a punitive measure while extending its scope only to nullification or impairment due to the flawed policy. The WTO uses the “Trade Effects” formula to determine the amount of retaliation to be permitted. Additionally, the panel ascertains the retaliatory measures in view of the nullification or impairment of the state’s benefits. To date, the DSB has authorized the adoption of retaliatory measures against the violator only seventeen times. However, trade retaliation is still considered a “last resort” remedy. It can be used only when the multilateral trading system cannot resolve the dispute. Loopholes in the System The procedural aspects of sanctioning retaliation indicate the undue time involved in “rebalancing” the position. For instance, WTO Arbitrators granted China the right to impose retaliatory tariffs on the U.S. imports after a decade-long dispute. Moreover, the U.S. also initiated WTO proceedings against India pursuant to the latter's retaliatory tariffs in 2019, which had not been resolved until the recent diplomatic efforts undertaken by the USA and India. Though subversion of the procedural rules is neither feasible nor advisable, the long-drawn dispute also bears significant repercussions on the retaliating country (commonly referred to as “shoot itself in the foot”) and the “innocent bystanders” of the country. Even if proceedings for retaliation are initiated, the violating country is not required to provide monetary compensation for the harm already caused. Further, when retaliation is sanctioned, the violating country is not required to rescind its illegal policy: it can choose to bear the retaliation concurrently with the implementation of the policy. Thus, the retaliatory efforts do not guarantee responses of compliance actions. Apart from it, the price of a breach is too low as nothing in the DSU ensures or obliges the actual imposition of retaliation. In a similar vein, the measurement method of equivalence amounts is not clear enough to avoid situations of under-compensation or over-compensation. The rebalancing act through retaliation necessarily requires accurate determination of the retaliatory amount. Retaliation through tariffs seems feasible, but it has negative consequences for business of both countries involved in the dispute. Given that the EU is India’s third largest trade partner, retaliation would only increase the cost of the targeted products, harming industries in both regions. Furthermore, the “sequencing” problem, as to when the WTO can authorize retaliation in case of non-compliance, further perpetuates ambiguities regarding trade retaliation. For instance, it is uncertain yet when the compliance period begins, highlighting a discrepancy between Articles 21.5 and 22 of the DSU. Mutually Agreed Solution: The Need of the Hour Article 22.8 of the DSU provides three situations under which retaliatory measures have to be withdrawn: removal of the illegal policy, arrival at mutually agreeable solutions, or the provision of a solution to nullification or impairment. Apart from these three scenarios, Article 3.7 of DSU ascribes clear preference to a mutually arrived conclusion. The enlarged scope of retaliatory measures aims at ultimately achieving mutually agreeable solutions. The underlying purpose is demonstrated in the withdrawal of post-agreement retaliatory measures through mutual agreement between the USA and the EU in the EC – Hormones case. Renowned disputes like US – Softwood Lumber IV have also been resolved by the parties under Article 3.6 of the DSU. Similarly, India and the USA announced their mutually agreed solution on 13 July 2023 regarding the retaliatory tariffs imposed by the former in India -Export Related Measures. To prevent hardships from arising in the initial stages, countries should engage in multiple rounds of negotiations to reach a mutually agreed solution. Therefore, the potential dispute between EU and countries raising objections to the CBAM Regulations should negotiate mutually agreeable solutions, which will cause little or no economic harm to either side. Conclusion The European Union is encouraged to adopt an internationally agreed upon legislative framework delimiting the scope of carbon border measures. If the current situation persists, multiple developing countries, including India, may devise their specific retaliatory measures or proceed with formal procedures to resist the Regulations. No parties want to dismantle the existing system for establishing an FTA over domestic regulations and incisive trade measures. Given that the global economy has emerged from a pandemic only to have immediately encountered inflation, a trade war is especially undesired. Retaliation will only contribute to our existing economic issues. Therefore, negotiating mutually agreeable solutions has an undeniable role in ensuring a fair assessment and country-specific equilibrium. The author would like to express gratitude to Mr. Varun Chablani for his guidance throughout the research and drafting process.

About the author: Adrija Guhathakurta is a law student with an ardent interest in international human rights law, gender justice, public governance, and technology governance. Adrija is currently pursuing a 5-year integrated BALLB Course at National Law University, Odisha. Adrija's research and experience involves Indian law, especially the application of the Indian Constitution, Special Acts for Women's Rights, State laws on Primary Education, Corporate & Commercial Laws, Administrative and Maritime Laws. Image by D. Talukdar depicting the Meitei Community in Moirang, Manipur. Available here. Introduction In March 2023, India’s Manipur High Court granted the Scheduled Tribes (ST) status to the Meitei community, affording them special protections like job quotas and land purchase rights. This decision intensified the long-standing disputes between the Meitei and Kuki-zho ethnic groups centered on property and resources. Concerns with Meitei’s potential dominance in India led to protests by the Kuki community and other minority tribes. Such tension escalated into violence on May 3, 2023, with a Kuki-led tribal coalition protesting across Manipur’s districts. Notably, the conflict is an ethnic one, not religious, despite a mischaracterization by the EU Parliament in a draft resolution on July 13, 2023. This resolution and numerous news sources indicated significant casualties and 60,000-70,000 internally displaced individuals. In response, the Manipur State Government deployed paramilitary forces on May 3, 2023, and the Union Government established a judicial commission and a peace committee, despite that the involved parties distanced themselves. Additionally, an internet shutdown from June to July 2023 hindered the media coverage. Since the violence erupted in the region, there have been multiple instances of migration of internally displaced persons to the nearby relief camps. Reports show that they do not even have the basic amenities required to survive during such conflicts. This blog explores how the situation has led to violations of the international standard of protection for internally displaced persons. Overview of the International Frameworks The United Nations acknowledges the absence of a universal special status for internally displaced persons (IDPs), with the current terminology being descriptive. Nonetheless, the UN Economic and Social Council has formulated the Guiding Principles on Internal Displacement (GPID), establishing global standards that member states are expected to follow to protect the rights of IDPs. These principles define IDPs as individuals forced to leave their homes within their country’s borders due to armed conflicts, widespread violence, or natural disasters. Noteworthy organizations like the International Committee of the Red Cross (ICRC), the Internal Displacement Monitoring Centre (IDMC), and the United Nations Council of Human Rights (UNHCR) play essential roles in researching and aiding IDPs worldwide. IDPs face key challenges including insufficient resources, safety issues in temporary settlements, and the persistent threat of violence in their new surroundings. What Does the Manipur Situation Mean for the Internally Displaced? The IDMC’s reports on India showcase that the majority of internal displacements are attributed to natural disasters. Therefore, there is a lack of internal displacement legislations in India that serve specifically the needs of people displaced due to conflicts and violence. The Disaster Management Act of 2005 and the Land Acquisition Act of 2013 provide certain rehabilitation and resettlement recourse to persons within the territories of India who have been displaced due to natural disasters. Apart from this legislation, there are only certain sets of fundamental rights, which protect all citizens and non-citizens and can be extended to include IDPs. Examples include Article 21 of the Indian Constitution, which provides for every individual’s right to life, and the Directive Principles of State Policy enshrined in the Indian Constitution, which list the maintenance of proper environment and livelihood of people as duties of the State. Regardless, the situation in Manipur has worsened over the last few months, as thousands of internally displaced individuals find refuge in relief camps without appropriate security or assistance. Amnesty International highlighted that IDPs in those camps have not been afforded proper housing, sanitation, food, or other necessary resources. This violates the very premise of the GPID, given that the first paragraph of its introductory note highlights these issues as the key concerns and Principle 7(2) mentions these parameters as primary assistance factors by the States. Women Have it Worse A recent video emerged and depicted the assault and public humiliation of two women in Manipur, leading to nationwide outrage. In response, on August 7, 2023, Chief Justice of India D.Y Chandrachud announced the formation of a three-member committee, consisting of former High Court Judges, dedicated to addressing issues related to sexual violence against women. The committee focuses on overseeing relief efforts, compensation, rehabilitation, and tackling the ongoing problem of sexual violence. Interviews have demonstrated the significant hardships that internally displaced women face in securing a stable livelihood in IDP camps. They begin their mornings with fear of being assaulted and many have not been able to bring their essential belongings, such as clothes and sanitary resources, with them to the relief camps. It is also important to note that India lacks specific legislations to safeguard women and children during conflicts. While laws like the Sexual Harassment of Women at Workplace Act (2013) and the Domestic Violence Act (2005) offer some protection, the scope remains limited. Only Section 375 of the Indian Penal Code, which addresses rape, is directly relevant, but such criminal allegations involve lengthy legal processes, making the pursuit of justice especially difficult for internally displaced women. Principle 7(d) of GPID explicitly highlights that the State authorities should give particular attention to the internally displaced women. Principle 18 further states that there should be full involvement of women in distribution of supplies during internal displacements. Principle 19 highlights the requirement for special healthcare aid for internally displaced women. The current situation of women, as reported by various news agencies and confirmed by Amnesty International, does not live up to the international standards and violates the principles of GPID mentioned above. The Internet Shutdown was an Unnecessary Hindrance In Manipur, ongoing violence prompted the government to impose an internet shutdown, which lasted until July 25, 2023. At that point, partial internet access was granted to residents but without a specified end date, making the partial access indefinite. On August 12, 2023, the Manipur High Court ordered the State Government to allow mobile internet services on a case-by-case basis by whitelisting devices. The Office of the United Nation’s High Commissioner of Human Rights’ (OHCHR) 2022 report on internet shutdowns highlighted that complete internet bans hinder humanitarian aid and government support in healthcare during violence, particularly for IDPs. The UNHCR’s 2020 report emphasized the importance of internet communications for aiding IDPs. Legislations like the Inter-State Migrant Workmen Act of 1979, which grants contractors substantial discretionary power to decide on the provision of healthcare and accommodation to migrant workers, could severely impede access to healthcare and assistance for displaced workers during prolonged internet shutdowns. A joint report by Human Rights Watch and IFF documented the challenges faced by displaced workers, who relied on government programs for rural employment during such shutdowns. According to OHCHR, restrictions on the freedom of expression should be “necessary, proportional and non-discriminatory.” Article 19(3) of International Covenant on Civil and Political Rights (ICCPR) provides two grounds for limiting the right to freedom of expression, including restrictions by virtue of law or in lieu of protection of national security, public order, public health, or morals. General Comment 34 of Human Rights Council (HRC) highlights that the restriction should not jeopardize the right itself. In the Manipur situation, the internet shutdown went on for almost two months, and the lack of internet connections barred the residents from communicating the situation to the outside world. This led to a growing sense of immunity amongst people who would inflict violence, leading to instances as depicted in the video about sexual assault. The internet shutdown was evidently disproportionate to the intensity of the violence and is not supported by law, as Rule 2(2A) of Telecom Suspension Rules 2017 (amended in 2020) clearly states that internet shutdowns should not continue for more than 15 days. Conclusion The situation in India’s IDP camps needs to be addressed immediately. Women are living in fear, and the internet ban has still not been lifted fully, as people in Manipur cannot use the internet on their mobile phones. The relief camp establishments have been reported to harbor as few as 20 toilets for hundreds of displaced individuals, along with minimal food resources available. First, the situation of the heightened risk of sexual violence against internally displaced women of the region should be carefully addressed. The all-women committee set up by the Supreme Court should not only look into matters concerning those affected within the boundaries of Manipur, but also make detailed accounts of the situation of internally displaced persons in the nearby relief camps, specifically in the case of women, children, people with disabilities, and other marginalized individuals. Second, the Indian Government should establish effective internet governance in Manipur, following the UNHRC’s report on Internet Governance in Internal Displacement, and emphasize the importance of connectivity in disaster or conflict-affected regions with mass migration of the internally displaced persons. The concept of Internet Governance, as highlighted by UNHRC, seeks to connect IDPs with assistance mechanisms including governmental and international agencies. Initiatives should begin by lifting the internet ban in Manipur and potentially imposing the President’s rule, under Article 356 of the Indian Constitution, which allows the Union Government to suspend the State Government and take over the administration through the centrally elected State Governor. This would ensure the facilitation of a centralized administration and the control of security forces by the Union Government. This would further enable central collaboration with organizations, including the UN’s Emergency Telecommunications Cluster (ETC) and local NGOs, such as All-Manipur Kuki Displaced Persons Association and Women Action Development Agency. Further, as demonstrated in the case of Mizoram, where the government raised funds for IDPs, funding and involvement from other state governments would enhance these collaborative endeavors. The long-term goal of India should be to focus on inculcating, in the existing legislation on protection of vulnerable groups, the duties of the State in serving the needs of internally displaced persons during both natural disasters and internal violence and conflicts.

About the Author: Sergiy Panasyuk is a Lecturer at the Department of Constitutional Law of Charles University (Prague, Czech Republic), a professor at Ukrainian-American Concordia University and European University (Kyiv, Ukraine), a Visiting Fellow at Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany), and a former academic consultant of a Judge of the Constitutional Court of Ukraine (2017-2022). He can be reached at s.a.panasyuk@gmail.com. Image by Bondart. Available here. Introduction A year and a half after the Russian full-scale military invasion of Ukraine, the prolonged nature of this conflict is evident, and there are no visible possibilities to cut such a Gordian Knot without a win on the battlefield. There is also no legal ways to “cut” any part of Ukrainian territory to calm the aggressor. Despite political speculations, expert opinions, and careless statements of NATO officials—who later had to apologize—the prospect of negotiation is legally unrealistic. Even if the Ukrainian government finds itself in a situation where negotiations and peace agreements appear to be the only ways to stop the war, such measures are likely viewed as illegal. They can lead to public dissent, domestic protests, and even a new wave of revolutionary movements in Ukraine. It is clear that any possible negotiations will at least focus on two critical issues: territorial compromise and Ukraine's future NATO membership, both of which appear unattainable. Moreover, the statement of American lawyer and US senator, Lindsey Graham, advocating for free and fair elections in Ukraine next year, even during the ongoing war, struck as peculiar. In response to Senator Graham's statement, the Secretary of the Ukrainian Council of National Security and Defense asserted that Ukraine’s actions would align with the Ukrainian legislation and Constitution, rather than the wishes of some of its respected partners who presumed that the Ukrainian government could violate laws. It is clear that without a thorough expulsion of Russian troops from Ukrainian territory, a de-facto military win, any elections or negotiations remain unrealistic. The prospect of negotiation presents legal perplexity. The first issue that would arise in any negotiations is “cutting” a portion of Ukrainian territory, which seems implausible because of the difficulty of obtaining endorsement from the Ukrainian Parliament, the Referendum, and the Constitutional Court. While some political actors may frame such a territorial compromise as a temporary measure to save Ukrainian soldiers' lives, it is hard to imagine that the majority of Ukrainian Members of Parliament (MPs) would vote for relinquishing control, even temporarily, over the occupied territories. Such a move would likely face major public dissent, making it a risky venture outside the Parliament. People would likely reject such an agreement, given that any territorial changes necessitate validation through a national referendum, which is legally prohibited during martial law. Even if the government could suppress public protests and falsify the voting, the Constitutional Court, acting as the Constitutional gatekeeper, can still stop government actions at any stage. Meanwhile, in case the Court could not perform its duty, the populace would further demonstrate their opposition as the ultimate source of the state’s power. This scenario could potentially trigger a revolutionary movement. The second main issue for negotiation, absent a military win, is the future NATO status of Ukraine. In this case, we should first remind our readers that after constitutional amendments in 2019, the pursuit of NATO membership is officially enshrined within the Ukrainian Constitution as a national choice. The Parliament, the President, and the Cabinet of Ministers are constitutionally obliged to support this objective. Despite academic discourse and separate opinions of six judges of the Constitutional Court on certain aspects of these constitutional amendments, the Constitutional Court upheld the constitutionality of such changes. Excluding the "way to NATO" from the Constitution would require two rounds of voting in the Parliament and a Constitutional Court review. However, the main hurdle remains the constitutional prohibition on any amendments of provisions during the period of martial law. Even if the Ukrainian government finds ways to stop martial law and starts the amendments procedure, repealing the amendments still requires review by the Constitutional Court. Otherwise, the revolution scenario is also inevitable. In addition, facing terrible corruption during the war, the Ukrainian nation is critically sensitive, so public dissent might "explode" quickly during potential negotiations with Russia without winning the war. The author does not think Ukrainian authorities will take such a risk to violate the constitutional provisions or push the nation to take desperate steps. Therefore, any discourse about potential negotiations with Russia without a military win appears to be either a probing of international or Ukrainian official responses, or merely media sensationalism. Unrealistic elections in 2024 In the author's view, the statement by Senator Graham might be interpreted as political provocation, or simply a lack of understanding of Ukrainian laws. Regardless of Senator Lindsey Graham’s intent, the elections in Ukraine in 2024 are improbable without a military win. According to the Ukrainian Constitution, regular Parliament elections in Ukraine should occur on the last Sunday of October of the fifth year term. The Presidential elections should be on the last Sunday of March of the fifth year of their term. Given that the Parliament was elected in July 2019, the elections are due this October. However, pursuant to the President's decree, the Parliament extended the martial law till November 15, 2023, which logically will be extended again till the end of the war. Consequently, the parliamentary elections can only occur after martial law ends. However, there is a possibility to have the Presidential election in March 2024 if the war ends soon. Senator Graham mentioned the need for an election next year even if the war continues. Theoretically, there are two legal ways to realize such a plan: 1) discontinuing the martial law regime or 2) changing the legislation to allow elections during the war. Ending the martial law during Russia’s full-scale aggression seems dangerous for Ukraine’s national security. It can be no more than a political "wishlist" and only plays into the hands of the aggressor. Changing the domestic legislation regarding the parliament elections will not work because the Constitution mandates the incumbent Parliament to continue its term till the end of martial law. Although the Constitution is silent on presidential elections during the martial law regime, such a proposal appears dangerous as the risk of attacks during voting is real. Therefore, the US Senator seemed to have encouraged Ukraine to take irrational steps. Conclusion Upon examining the aforementioned issues, it seems clear that any peace agreement with Russia without a factual military win would face legal hurdles. It is true that democracy provides an effective mechanism for authority transition and corruption could undermine any democratic regime. While the Ukrainian authority has its shortcomings in some of its actions, pushing the Ukrainian government to start illegal negotiations or hold elections that may pose a danger to its national security is not a way to combat corruption or effectively promote democracy. The termination of warfare without a Ukrainian victory is also unrealistic. Ukraine’s defeat in the war would likely lead to a new war after a while, possibly on the territories of EU countries. After all, if you give the beast to bite off a finger, it will definitely covet your hand.

About the Authors: Ashutosh Anand is an undergraduate law student at the National University of Study and Research in Law, Ranchi, India. He can be reached at ashutosh.anand@nusrlranchi.ac.in. Kaustubh Kumar is an undergraduate law student at the National University of Study and Research in Law, Ranchi, India. He can be reached at kaustubh.kumar@nusrlranchi.ac.in. Image by Kevin Schmid available here. Introduction Since the beginning of the Russia-Ukraine war, investors have strongly felt the need for remedies offered by international investment arbitration in light of the injury and vulnerability to their investments in Ukraine. Considering this, claims for material damage compensation are a common component in every dispute of investment arbitration. Tribunals comprehensively deal with such claims but do not provide much heed to another type of damages, i.e., moral damages. Moral damages, or non-material damages, are awarded to remedy the non-material injury, such as individual suffering or agony, loss of loved ones, or personal aspersion concerning an incursion upon one’s home or private life. The claims for moral damages in investment arbitration are relatively recent, but their significance and frequency have grown in recent years. Moral damages in international investment arbitration can play a decisive role in the recent Russia-Ukraine war. Formerly, during the Crimean invasion in 2014, Ukraine’s lawfare response through investment law to the Russian incursion presented an instructive and unique case study of the systematic use of legal means against a belligerent State, and the same could not be a far-flung expectation in the current war. Therefore, it becomes essential to discuss some ambiguous aspects of moral damages. One such ambiguity arises when the legal entity claims moral damages on psychological or emotional grounds. It is a settled law that a legal entity can only suffer from reputational harm, as it is erroneous to deduce that a legal entity can bear any psychological violence or emotional distress. However, some tribunals, going contrary to the general rule, have granted the legal person, i.e., the entity, the claim for reparation of moral damages based on psychological violence or emotional distress, which was endured by the entity’s employees. This has resulted in a discrepancy in law. With the primary objective of examining whether a legal entity/corporation can claim moral damages based on psychological or humane causes, this piece begins by analysing the present legal regime related to moral damages from the gargantuan lens of international investment law. Then, the piece sheds light upon the general rule concerning a corporation’s claim for moral damages on a psychological basis. Additionally, the piece analyses the Desert Line v. Republic of Yemen case, which has constructed an innovative jurisprudence on this issue. Towards the end, the piece argues for the flexible approach of the inclusion of humane causes for a legal entity’s claim, which is best suited to meet the ends of justice. Moral Damages and the Current Legal Regime Compensation of moral damages originates from the obligation under customary international law of full reparation, whether material or moral, of an injury created by an internationally wrongful act. Article 31(1) of the International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001 [hereinafter “ILC provisions”], mentions the expression “full reparation.” Further, Article 32(2) of the ILC provisions state, “injury includes any damage, whether material or moral….” Moral damages may remedy multifarious non-material harm in investment arbitration, including damages to reputation and personality, as well as loss of business credit, reputation, goodwill, and opportunities in the case of legal entities and corporations. Although certain tribunals have acknowledged moral damages as a potentially legitimate basis for recovery under international law, awarding moral damages in international investment disputes is still relatively uncommon. Tribunals are usually cautious of claims of moral damages, strictly examining the grounds for awarding the damages and capping the amount granted . Nevertheless, some Tribunals have considered granting moral damages to the aggrieved parties, including legal entities, by relying on certain tests, such as award under ex æquo et bono competence, exceptional circumstances test, and malicious and fault-based conduct of the state test. Moreover, reiterating the foregoing ILC provisions, a plethora of ICSID Tribunals, in addition to Tribunals of other jurisdictions, have frequently provided that there is no provision in ICSID Convention, Arbitration Rules, and Additional Facility that bars the Tribunal from awarding moral damages, and that international arbitration tribunals are fully competent to award compensation for moral damages. Accordingly, it is irrefutable that reparations based on individual pain and suffering are valid claims that fall under the category of moral damages. Psychological Damage: Deciphering General Rule Regarding Moral Damages An individual may experience psychological violence, emotional distress, or any other suffering of that nature. Nevertheless, by applying common reasoning, it can be surmised that a legal person cannot have such a privilege. As a result, moral damages such as mental harm or emotional distress cannot be claimed by a legal person. However, if the investor is an individual who is protected under the investment treaty, that person may, indeed, experience mental distress or psychological abuse and hence be eligible to claim compensation. Another exception to this general rule is the incorporation of the “Full Protection and Security” clause (hereinafter “FPS”) in the agreement. The FPS clause is the relevant instrument that empowers the corporation to claim such damages in front of an arbitral tribunal. The host State has a responsibility under the ‘FPS standard’ to (i) not harm investors/investments by the actions of State organs or actions otherwise attributable to the State and (ii) protect investments and investors from private parties during times such as civil unrest. Therefore, under the presence of the FPS clause, an entity can claim damages on behalf of its employees on physiological and moral grounds. Desert Line Dictum: Going Away from the General Rule Although the general rule of moral damages favors the law that a corporation cannot claim moral damages by citing psychological distress, the Desert Line v. Yemen case offered a novel perspective to the issue. It is one of the first and landmark cases concerning moral damages. In this case, the Claimant-Corporation claimed the amount as moral damages under three heads: breach of the obligations under the investment treaty by the Respondent, psychological violence suffered by the corporation’s executives, and loss of reputation suffered by the corporation. The Tribunal accepted that moral damages were available to both legal and natural persons due to the harm resulting from the violation of an investment treaty. The Tribunal awarded moral damages based upon the loss of reputation of the Claimants. However, upon closer examination of the argumentation leading to the conclusion of reputational harm, it becomes evident that the Claimant contended that its executives faced anxiety and stress of being threatened, harassed and detained by both the Respondent-State and the armed tribes as well. The Claimant’s executives were also alarmed by the Respondent-State with respect to the Contracts. As a consequence, the Claimant has suffered a considerable injury to its credit and reputation. The strength of the argument was based on the individual pain and suffering of the employees. Consequently, the Tribunal awarded the Claimant US$ 1,000,000, recognizing that the Claimant’s “prejudice was substantial since it affected the physical health of the Claimant’s executives and the Claimant’s credit and reputation.” While taking into consideration the lines produced above from Desert Line, it is noteworthy that the Tribunal not only described the loss to the company (credit, reputation and prestige) but also mentioned the harm to the company’s executives as primary to its reasoning in favor of moral damages. Therefore, it can be asserted that the Tribunal upheld the principle that a corporation can claim damages based on the actions that harmed members of its staff. Way Forward: A Strict Application of Rules Appear Strenuous to Justice Despite being contrary to the general rule, the Desert Line decision has been applied by multiple Tribunals in determining whether a corporation can claim psychological damages. However, it is pertinent to note that the Desert Line Tribunal failed to provide the rationale for its reasoning connecting the psychological violence suffered by the executives of the corporation to reputational harm, which led to the award of moral damages to the Claimant-Corporation. A more detailed explanation in this regard would have bolstered the precedential value of the decision. Nevertheless, going along with the rigorous application of the standing rules precludes compensation to the corporation for damage to the personal rights of the executives. Such an approach might result in practical difficulties. For instance, if these harms are excluded, and the appropriate place for filing such a suit would be local courts, in the words of scholars like Dr. Sabahi (Sabahi 2011, 139-140) and Dr. Dumberry (Dumberry 2010, 247), these courts might be unable to manage the case with the degree of independence as desired or provide justice to the aggrieved party. Multiple ICSID Tribunals have endorsed this view. To remedy this legal limitation, one could refer to the state espousal doctrine, which is dictated by the Vattelian fiction that an individual’s injury is equal to the home state’s injury of the individual, to envisage a doctrine of ‘corporate espousal,’ through which injury to an employee of a corporation would be regarded as injury to the corporation itself. This is the underlying premise from which the right to claim moral damages arises and can be employed in disputes arising out of the recent Russia-Ukraine war.

Hiep Nguyen (JD '23) was the Senior Online Editor of the Berkeley Journal of International Law and the Senior Technology Editor of the California Law Review. This piece is co-published with the California Law Review. A rally at Berlin’s Brandenburg Gate protesting the unprovoked Russian invasion of Ukraine. Photo by Leonhard Lenz. Article 1, Section 2 of the United Nations Charter enshrined the “self-determination of peoples”—the ability to choose one’s destiny—as a fundamental right of every country. In 1970, the UN General Assembly passed the Friendly Nations Declaration, which further defined this principle by making illegal any actions that would “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.” This declaration, complemented by similar language in Article 6 of the International Covenant on Civil and Political Rights, codifies each country’s right to self-determination free of forced foreign interference over their internal affairs or unprovoked invasion of their sovereign land. Russia broke these international laws when it invaded Ukraine after months of troop buildup along its and Belarus’s borders. Russian President Vladimir Putin sought to expand his power, conquer another Slavic people, and end Ukraine’s pursuit of a democratic future away from his grasp as a member of the European Union and North Atlantic Treaty Organization (NATO). His government stated that Russia would topple Kyiv in three days and that Ukrainians would welcome Russian forces as “liberators.” He lied to his people about “denazifying” Ukraine while bombing a Holocaust memorial and conveniently ignoring that Ukrainian President Volodymyr Zelensky is Jewish and the son of Holocaust survivors. He shelled civilians in maternity hospitals, assisted care centers, evacuation sites designated for safeguarding children, and apartment blocks, killing over 20,000 innocent Ukrainians since his needless war began: a number likely undercounted as Russia continues using force against civilians. He flattened Mariupol and massacred hundreds of Ukrainians execution-style in formerly occupied cities like Bucha, with plans for mass graves and mobile crematoria to cover up his atrocities and reports of alleged chemical weapons use. He gave the world a devastating glimpse at the deadly regional conflicts, driven by dictators’ desire for power, that plagued Europe for centuries before World War II. Yet, Ukrainians thwarted his ability to accomplish most of his objectives. They opened reservoirs and intentionally flooded roads to enhance the raputitsa (the Ukrainian mud season), immobilizing and trapping hundreds of Russian tanks north of Kyiv for Ukrainian farmers to seize. Supported by an unprecedented stream of arms provided by NATO and EU states, the Ukrainian Armed Forces (UAF) took advantage of poor Russian morale and planning to block Moscow’s advances on all fronts: stymying attacks from Chernihiv and Sumy to the east to Mykolaiv and Zaporizhia to the South by keeping key roads, ports, and airfields under Ukrainian control despite being outnumbered and outgunned. Using street blocks and buildings as shields, they have held Mariupol for nearly two months despite an intense Russian siege. And even in captured cities like Berdyansk and Kherson, citizen protests deeply undermined the Russian occupiers. This effective defense killed over 19,000 Russian troops and took out thousands of tanks, planes, vehicles, and other military equipment, forcing Russia’s defeat in its conquest of Ukraine and limiting the Russian military campaign to the Donbas region. By withstanding and pushing back Vladimir Putin’s unprovoked invasion, Ukrainians determined that their future as a sovereign state is theirs alone to decide. In doing so, Ukraine galvanized the West to mount decisive sanctions and military aid to Ukraine that have crippled Russia’s ability to wage wars of conquest, thereby enforcing international laws on self-determination. Ukraine’s resistance, the West’s unity, and Russia’s naked aggression have sharply elevated public support for the post-World War II order governed by international rules regarding self-determination, democracy, and human rights, and institutions like the EU, which were formed to place these principles in action. It has also proved the indispensability of NATO (whose mutual defense pact protects member states from any country that violates their sovereignty) to Eastern European member states who fear potential invasions by Russia and Western political and economic unity on deterring Russian aggression. These groundbreaking precedents may also protect the rights of vulnerable countries far beyond Europe’s borders. To begin with, Ukrainians determined their own democratic future by repelling Russia’s harrowing attacks on their land. Russian military vehicles destroyed by the Ukrainian Armed Forces near Kyiv. Russia and Western experts severely underestimated Ukraine’s morale and fighting capability against the Russian invaders. Photo by the Government of Ukraine. Putin, who has called the collapse of the Soviet Union one of the greatest tragedies of the last century, believes that Ukraine and most Slavic states constitute Russia’s historic sphere of influence. He thinks that Moscow is therefore entitled to control their affairs and ensure their friendliness to Russian domestic and foreign policies. Russia still exercises control over Belarus, and largely maintained a similar “friendly” arrangement with Ukraine for a decade until Ukrainians revolted and demanded their freedom in the Orange Revolution of 2004, and the successful Euromaidan of 2014. The latter resulted in the Kremlin-friendly president fleeing the country in disgrace and his replacement by duly elected successions of liberal governments. Some Western pundits parrot Putin’s imperialist beliefs and argue that Ukraine and its neighbors should not “anger” or “provoke” Russia by pursuing democracy or EU and NATO membership, and that NATO countries were wrong to allow eastward expansion after the collapse of the USSR. They also goad Kyiv into accepting massive territorial concessions in exchange for peace. However, this “westsplaining” (a term coined by Professors Jan Smoleński and Jan Dutkiewicz) perpetuates imperialism and colonialism by denying Eastern European states agency in determining their future. It instead treats states like Ukraine as pawns in a game of global chess. It ignores the violent history Ukraine and its neighbors experienced under Russian domination that motivates their efforts to join NATO and the EU. In the USSR, their citizens experienced political repression, cultural genocide, and the Holodomor: a famine that killed millions and was designed to subjugate Ukrainians and force them to accept Soviet rule. This does not even begin to describe the Kremlin’s brutal crackdowns on democratic dissidents in countries behind the Iron Curtain. Ukrainian refugees sheltering underneath a bridge near Kyiv after a Russian bombing. Photo by the Government of Ukraine. Westsplaining therefore amounts to a blatant violation of fundamental principles of international law, which clearly state that no country is entitled to determine another’s affairs, no matter how large, aggressive, or expansionist they make themselves out to be. If Ukraine seeks to join the EU and NATO, that is their choice. If Ukraine feels it cannot negotiate until its full territorial integrity is guaranteed—including full control and removal of Russian troops from the Donbas region–that is their choice. Not Russia’s. Not Europe’s. Not the United States’s. In addition, Ukraine’s resistance has united NATO and Europe to enforce international law by devastating Russia’s military and economic capability to wage war. EU Commission President Ursula von der Leyen first announced Allied sanctions against Russia for its illegal incursions into Ukraine. Photo by European Commission. International law has no true judicial enforcement mechanisms. For instance, Russia can withdraw from any International Criminal Court statutes they like, and neither Moscow nor Washington are parties to the International Court of Justice’s compulsory jurisdiction. This often leaves it up to alliances and countries to enforce international law. Examples include NATO enforcing UN resolutions against genocide by ending the mass killing of Muslim Bosnians and Kosovans in the Yugoslav Wars of the 1990s. Other examples include countries upholding international law against racial discrimination by divesting from and boycotting South Africa during its Apartheid era, and, most recently, Western countries sanctioning Russia for its illegal annexation of Crimea in 2014. Putin’s invasion of Ukraine, which clearly aimed to decapitate the country’s leadership and install a favorable regime, demonstrates how far Russia and other illiberal actors will go to expand their power and defy global norms on sovereignty. Putin has hinted that he will not stop with Kyiv. He previously invaded Georgia and occupied Moldova’s Transnistrian region under the guise of “protecting” Russian minorities. His ultimatums to NATO included a withdrawal of Allied forces out of Eastern European countries, including Baltic NATO states that fell under Soviet domination before 1991. Foreign policy analysts routinely suggest that Putin aims to rebuild the old Russian Empire and restore what he sees as lost Russian influence over its neighboring states, much like how Hitler annexed most of Central Europe in the 1930s. Russia’s terror, which portended continued and even more brazen upheavals of international law (and included threats to NATO members which would trigger its mutual defense pact), along with Ukraine’s spirited resistance, motivated the West to enforce global rules on self-determination and sovereignty. They did this, first, with the most destructive bevy of diplomatic and economic sanctions in modern history that have eroded both Russia’s ability to finance war, as well as its global and regional reputation. EU and NATO states have severed most Russian banks from SWIFT, the global payments system, and other key financial markets, effectively stopping Russia from importing any goods and freezing Russians’ ability to do business with the West. Russian companies may no longer raise money in most Western countries and are barred from exporting luxury items like vodka and diamonds. Russian oligarchs’ capital and assets have been frozen, its Nord Stream 2 pipeline is dead, and some Western nations have even gone as far as banning oil imports. This overwhelming response has prevented Russia from buying the microchips, materials, and equipment needed to replenish their military, and will cause Russia’s GDP to drop by over 30% by the end of 2022, abrading its ability to finance war. Moreover, Russia has been booted from both the Council of Europe and the UN Human Rights Council: severing many diplomatic channels it could have used to garner support for its war effort. On top of these $1 trillion measures, which have effectively destroyed and isolated the Russian economy, the West still has many tools left to punish Putin. This includes completely banning all Russian banks from SWIFT, ending all Russian oil sales in Europe, and eliminating Russia from both Interpol and the UN Security Council, among other sanctions. A young Ukrainian refugee awaiting resettlement at Przemyśl train station in Poland. Many parents have sent their children away alone or with older relatives to safer parts of Europe while they stay behind to defend their country. Photo by Mirek Pruchniki. Second, NATO and the EU have delivered extensive weapons shipments to Ukraine, including advanced anti-aircraft defense systems, tanks, firearms, and protective equipment. This sustains the Ukrainian Armed Forces without risking a direct NATO engagement with the Russians. NATO complemented these weapons with a vastly increased troop presence and air coordination in NATO member states bordering or close to Russia—this enhanced military presence was welcomed by Eastern European states. NATO and the EU clearly and unmistakably warned Putin that Allied countries will fulfill their Article 5 commitments to defend every inch of NATO territory should Russia decide that its incursions into Ukraine are not enough. These unified Western actions amount to a clear enforcement of international law on self-determination and sets a precedent of shattering economic consequences for any country that attempts to invade another sovereign state. This is not 1914. It is not 1938. It is 2022. The world aspires to rules that prevent unprovoked incursions—not regional powers or the whims of dictators. And Allied nations can and will give these rules teeth. Lastly, the unprecedented unity of the West in its defense of Ukraine and international law has strengthened the rules-based world order to previously unseen levels. This will elevate democracy, human rights, and sovereignty throughout the globe. EU, G7, and NATO leaders standing shoulder-to-shoulder, united in their commitments to Ukraine and democracy. Photo by White House. Public support for Ukraine continues to reach new highs, with most Americans and Europeans supporting the war effort and the global institutions (like the EU and NATO) responsible for keeping the peace after World War II. As a partial result of this elevated public sentiment, EU and NATO countries have united to sanction Moscow and send humanitarian and military relief to Kyiv. These decisions allowed Allied countries to create a resounding collective impact that few predicted months and years ago, especially after the chaos of Brexit, populism, and the Trump presidency. Putin not only bet against this unity but actively sowed division in Allied nations for his benefit. He was wrong and has paid a heavy price. The newfound unity of the West will have broad and transformative effects for the rules-based world order, strengthening its ability to stand up for smaller countries’ sovereignty and democratic institutions, just like it has in Europe. This unity can first be seen in a fundamental reset in refugee policy towards Eastern Europe, with Poland taking in over two million Ukrainians displaced from war, Romania over 500,000, and the United States over 100,000 (a smaller number since many Ukrainians prefer to remain in Eastern Europe and return to their homes to rebuild after fighting ends). Thousands of volunteers have poured into Ukrainian border regions to help migrants access food and shelter—an effort Western countries have supported with billions of dollars in humanitarian relief money. The growing threat of Russian aggression has motivated countries once on the fence about NATO membership to finalize applications to the Alliance—including Finland and Sweden, which are set to join by the end of the summer. Their additions will achieve the exact opposite of what Russia desired from its aggression–more NATO neighbors and greater enforcement of international law on self-determination. Polish volunteers assist Ukrainian refugees in Przemyśl Główny. Poland has taken in roughly 2.1 million refugees fleeing Russia’s invasion as of late March 2022, or roughly 5% of its population. Photo by Pakkin Leung. However, this reset is truer nowhere else than Asia, where China still muses about supporting the Russian invasion, actively threatens Taiwan, and continues to conduct incursions into the South China Sea and South and Southeast Asia that skirt the edges of the international law on self-determination. These actions are in addition to ethically questionable investment practices that have led African, Latin American, and Middle Eastern countries to owe Beijing large sums of debt and prevented them from condemning China’s egregious human rights violations against Uighur Muslims and Tibetans. A resurgent West, working together with its democratic partners in the Asia-Pacific, could coalesce again to hold China accountable for future violations of international law. Sanctions that could devastate Beijing’s economy and sever its goods and supplies from the global supply chain are all on the table, just like they were for Russia. Hu Wei, who directs the Chinese government’s public policy institute, recently argued that democratic countries have recently formed regional alliances like the Quad (Australia, India, Japan, and the US) and AUKUS (Australia, the United Kingdom, and the US) that deepen their economic and defense cooperation in the Asia-Pacific. This already limits China’s potential for territorial incursions. However, with an enhanced reputation and strengthened resolve from their success in countering Russia’s authoritarianism, these democratic countries and others may be willing to form new supply chains and trade agreements with the West that decrease their dependence on China and bolster their ability and willingness to sanction Beijing in the event of a Chinese international law violation. This would effectively erode Beijing’s growing influence in the region and empower not only the defense of existing Asian democracies, but also inspire even more democratic reform within Asia. Hu correctly analyzes that China’s only choice in the wake of Russia’s failure in Ukraine is to avoid antagonizing the West and its democratic partners. That means no more territorial incursions, human rights violations, or support for rogue states like Russia, whose invasion China has so far backed off from funding due partly to Western pressure. Therefore, the deterrent of strengthened global democracies have the potential to effectively enforce international law, protect the sovereignty of smaller states across Asia and Europe, and perpetuate the rules-based, liberal world order for decades to come. People taking to the streets in Europe to support Ukraine. Photo by European Commission. “Be not afraid,” as Pope John Paul II continuously repeated in the face of Soviet repression and President Biden echoed in his resounding Warsaw speech in late March. The horrors of Russian aggression—communities terrorized by cluster bombs, children hiding from shelling in makeshift shelters, families starving to death in sieged cities—demonstrate the stakes at hand if the world is governed not by international norms and rules regarding self-determination, human rights, and democracy, but instead by regional powers hellbent on territorial expansion. This is how the world existed for millennia before World War II, and why per capita deaths from wars were consistently and disturbingly high prior to the 1940s. But Ukrainians were not afraid. They refused to acquiesce and turn back the clock on liberty. In defending their sovereignty, they effectively united the West to enforce international law on self-determination through a devastating array of sanctions against Russia. The precedent set by these developments strengthen the rules-based world order and guarantee more sovereignty, democracy, and human rights for other vulnerable countries far beyond Europe’s borders.

Amanda Colding (J.D. Candidate, Class of 2024) is a contributing editor. Her interests include private-sector international law, human rights law, gender-based violence advocacy, refugee rights, and youth and disability rights. Amanda holds a B.A. in English from Spelman College in Atlanta, Georgia, where she studied abroad in Durban, South Africa, for a semester. Before law school, Amanda served as a Freedom Corps Fellow at the Working Families Party and a coach for Progressive Pipeline’s cohort of fellows. Currently, she works as the team coordinator for the International Human Rights Law Clinic and will be working with the United Nations in Geneva, Switzerland, next semester. She speaks French at an intermediate level. Climate Change in Africa On the continent of Africa, many countries are suffering the damaging effects of climate change which is impacting each community’s way of life. According to the World Meteorological Organization (WMO), African communities are encountering highly destructive floods and droughts that are affecting states’ economic systems. In the WMO’s words,“[r]ising water demand combined with limited and unpredictable supplies threaten[s] to aggravate conflict and displacement.” The WMO’s State of the Climate in Africa 2021 Report has highlighted the extreme events the continent has experienced, ranging from extreme floods and tropical cyclones to droughts, heatwaves, wildfires, and sand storms. While South Sudan and Nigeria have experienced extreme flooding, cyclones have moved through Madagascar and Mozambique. Algeria has undergone a series of 43 wildfires in June 2022 and 22 wildfires the following August. The report also indicates the cross-cutting impacts of these climate crises on agriculture, community displacement, and the economy. The droughts and floods in 2021 propelled hunger and malnourishment across countries in Africa. These factors, coupled with economic slowdowns and downturns, contributed to food insecurity and inhibited the progress toward the zero hunger goals in Africa. East Africa encountered long droughts from below average raining seasons which raised food prices and made food unavailable or inaccessible. This left more than 58 million East Africans to suffer from food insecurity and famine. At the same time, in West Africa, cereal production was impacted by sporadic and late rains which increased food prices and decreased agricultural outputs . From October to December 2021 23.7 million people in the Sahel and West Africa suffered from a food crisis or worse. In African countries drought-related hazards have led to the loss of over half a million people’s lives and an economic loss totaling over 70 billion USD. The Grand South region of Madagascar faced its worst drought in thirty years in 2021. This left the population struggling on the verge of famine during the year. Madagascar had also fallen victim to an Armyworm outbreak which led to 60% of crops being lost. Malagasy locusts also infested more than 48,00 hectares of land. As a result, 1.14 million people experienced high levels of food insecurity from April to September 2021. North Africa has seen multiple harsh fires that have burned thousands of hectares of land, damaged orchards, and disturbed livestock. In Algeria, 40,00 hectares of land were burned, more than 5,000 hectares of fruit trees were lost, and 19,000 farm animals were killed. As these climate crises increasingly contribute to food insecurity, they are also causing high levels of displacement and a surge in climate refugees. Many internally displaced people in Africa live in the areas most impacted by climate change while lacking the necessary resources to guard against climate change’s effects. This situation highlights the inequality and disproportionate impact that climate change has on Africa. Although the continent as a whole only contributes to “2% to 3% of global greenhouse gas emissions,” its people are among the first to feel climate change’s worst effects. Inherent Risk for All Countries According to UN projections, Africa’s population is set to double in 2050 and one in four people will live in Africa. By 2100, Africa’s share of the world population is set to rise from 17% to 40%. As Africa’s population grows, more and more African people will be disproportionately impacted by the climate crisis By 2100 the climate crisis will have worsened and there will be a severe increase in the number of climate refugees emigrating from East, West, North and South Africa. The United Nations High Commissioner for Refugees (UNHCR) addresses the impact climate change has on migration and declining living conditions. UNHCR addressed the way that natural resources like drinking water have become scarce in regions that host refugees. The High Commissioner also highlights the way climate change acts as a threat multiplier when it comes to existing tensions and conflicts. Due to extreme weather events, 20 million people on average are forced to leave their homes and move to other regions in their countries annually. This will expand the population of refugees that are forced to leave their countries due to their home state being uninhabitable. The crisis will push more climate refugees to seek safety and resources in bordering African countries and more Western countries. Public-Private Partnerships as a Way Forward Although countries in Africa are facing the dire consequences of climate change, there are still many opportunities to enforce global cooperation to tackle the climate crisis that affects us all. Developed countries who once exploited African countries by extracting resources through oppressive practices have the chance to create legislative frameworks that incentivize public-private partnerships with African governments. These nations have an opportunity to create legislative frameworks that protect against corruption and exploitation in African countries while also encouraging private entities to invest in green technologies that could help tackle the climate crises faced in each country in Africa. African countries are in such a great position to lead the world in global climate action because their economies do not have to overcome pre-existing carbon-based economic infrastructures. While other countries will be occupied working to decarbonize their economies and transform old carbon-based economic structures, Africa has the opportunity to invest in a robust green sustainable economy. The continent can be the first to take on this innovative approach to the economic market and show other countries how to build an economy that is centered around creating a sustainable environment while they work to decarbonize. As noted by the founding CEO of the Climate Action Platform for Africa “[t]he continent doesn’t have an ‘old economy’ that needs to be decarbonized. It can invest right away in the green economy that we need — an economy that’s net positive for the planet and the people.” This would be possible through the young workforce that continues to grow as well as the continent’s large plots of land and renewable resources. Investing in a wholly green economy would open up a path for new economic opportunities in Africa. The Climate Action Platform for Africa is a public benefit organization that demonstrates the value of climate mitigation efforts through projects that utilize its natural resources, land, and young workforce. In the Climate Action Platform for Africa there are three pathways that Africa can pursue to create a green- and sustainable-based economy. One of these pathways would be uplifting sustainability as a core principle when adopting technology and business models for consumption and production. Sustainable technologies could lead to “job creation, better public health and improved climate change resilience for the continent.” Another way Africa can shift to a more sustainable and green economy is through keeping bulky raw processing industries on the continent rather than exporting to other places that will use coal and additional polluting energy sources to process them. This “reduce[s] emissions from global value chains” while also increasing economic investment and job creation on the continent. Africa also maintains a substantial amount of forests, grasslands, peatlands, and mangroves which plays a substantial role in the decarbonization process by slowing climate change and environmental degradation. To maintain these efforts it is essential that the international community works to compensate these communities and employees who work to keep the lands nurtured and alive. Currently, according to the Infrastructure Consortium for Africa (ICA), investors struggle with investment because of a lack of political will and certainty in the implementation of public-private partnerships. Other barriers to expanding public-private partnerships that the ICA mentions include the lack of institutional capacity, unrealistic expectations, financial risk, the regulatory environment, potential corruption, and the lack of transparency. Developed countries can play an essential role in overcoming these challenges by creating legislative incentives for private actors to invest in the maintenance of green habitats through tax breaks. This would require countries to enter into bilateral treaties with African countries to allow investment in green technologies in Africa while also encouraging sustainable environmental efforts. One case study of public-private partnerships working for the benefit of another region’s economy is that of the Central Partnership for Central America (PCA). In partnership with Vice President Harris, the World Bank, and private sector actors, the PCA “mobilized $3.2 billion in investments with a 10-year goal to create one million jobs and economically enable 20 million individuals.”Although this is set to happen over a set period of time, 450,000 people have been included to use MasterCard, Visa, Bancolombia, and Davivienda and two million people have accessed broadband services through Microsoft and Millicom. Microsoft delivered internet access to children in rural indigenous communities totalling around 4000 people. To transform Africa’s economy into a green, sustainable one African countries should turn to resources that guide the States in a way that is financially responsible for investors and safe for the public sector. The Infrastructure Consortium for Africa, the World Bank, and Partnerships UK also came together to create “Attracting Investors to African Public-Private Partnerships: a Project Preparation Guide” to outline the ways to make transforming public-private partnerships in Africa into a reality. It addresses the necessity for a policy framework, a legal framework, and an investor framework that ensures an investor’s participation in public-private partnerships while also encouraging full integration of the partnership in the public sector. This strategy to achieve a green sustainable economy through public-private partnerships provides a great opportunity for countries like the United States, the United Kingdom, Belgium, and France to confront their histories of colonization and imperialism which left many African countries that were rich in raw materials and resources behind in the developed world. It gives developed countries that reaped many of the rewards from their exploitative and corrupt practices the chance to contribute some form of reparations to the countries that have suffered the most since the Berlin Conference. This would require these countries to cede power in efforts to save the world from the global climate crisis that’s leaving countries like Senegal at risk of extreme flooding which threatens to displace 80% of its colonial capital by 2080.

Spencer M. Perry (JD '23) is a Berkeley Law student pursuing a career in international criminal law as a federal prosecutor. Before law school, Spencer worked on foreign affairs and criminal justice issues in the Obama White House and the office of then-Senator Kamala D. Harris. Spencer began his career advocating for same-sex marriage rights in California. Introduction Russian troops invaded Ukraine promising liberation but delivering terror. The extent of Russian war crimes was illustrated in early April 2022 when a retreating front left evidence of genocide in its wake. The civilians of Bucha were left dead and mutilated in the street, in their homes, and in mass graves.[2] Some bodies were burned and others thrown into wells, poisoning water supplies.[3] Many were killed with their hands bound behind their backs.[4] The death toll reached 461 on August 2022.[5] Bucha is emblematic of Russia’s war crimes in Ukraine. The Russian military marched across eastern borderlands towards Kyiv, razing homes[6] and hospitals[7] in its wake. Fleeing refugees are shot[8] and buried in unmarked trenches.[9] Evidence amasses indicating that each atrocity was an intentional state-led attack.[10]Journalists, UN observers, and now International Criminal Court (ICC) investigators document each atrocity, hoping that the world might rise to defend humanity and to hold Russian war criminals to account. While the rest seek an immediate reaction, the ICC’s investigation and pending litigation demand persistent toil before they bear fruit.[11] The ICC seeks justice through deliberate investigation and adjudication. Resolution in a quiet courtroom stands for the hope that our virtues might eclipse our vices—that justice can be delivered in ink, not blood. That hope is only achieved when its shepherd, the tribunal, has an avenue to execute its mission: holding war criminals accountable. The tribunal’s chances of success are bound to its ability to prevail over a suspect’s attempts to subvert prosecution. Suspect governments may do so by misusing a state secrets privilege. An absolute state secrets privilege emboldens such sabotage. An absolute privilege forces a court to accept a state secrets assertion without examining the contested material. A qualified privilege tempers bad faith interference by permitting a court to examine the material and weigh the interests for and against disclosure.[12] The ICC’s formulation of the state secrets privilege is dangerously absolute and therefore jeopardizes its investigation into Russian atrocities in Ukraine. Existing scholarship underestimates the risk that an absolutist state secrets privilege diminishes the ICC’s prospects for ensuring Russian accountability and inadequately examines an alternative: a qualified privilege. Descriptive analyses of the absolutist state secrets privilege abound.[13] Some pay particular attention to when state privileges may be asserted in international criminal tribunals and how tribunals might overcome assertions.[14] Others compare the absolutist and qualified approaches in international criminal contexts.[15] None observe Russia’s likely invocation of the state secrets privilege in Ukraine-related ICC litigation or argue that a qualified privilege may be applied to avoid disaster: an investigation deadlocked by an unsubstantiated state secrets claim and the most powerful international war crimes tribunal made impotent by an absolute privilege.[16] The ICC’s present investigation into Russian war crimes in Ukraine is imperiled by the Court’s absolute deference to state secrets claims. This paper argues that the international community should employ a qualified state secrets approach in the ICC because maintaining its absolute approach will foreclose the possibility of holding Russian war criminals to account. Part I presents the ICC’s absolute state secrets privilege and a qualified alternative. Part II describes and examines the consequences of the United States’s absolute approach and analyzes why the ICC can expect similar results. Part III argues that the qualified path better serves a tribunal’s mission to pursue accountability. Part IV examines why any attempt to prosecute Russian war crimes in Ukraine should incorporate a qualified state secrets privilege to achieve criminal accountability and success. I. Absolute and Qualified State Secrets Privileges in International Criminal Law International criminal tribunals are not born equal. The multistate communities that establish them decree their scope, structure, and procedure, often sewing politics between the lines of their charters. The procedures for evaluating state secrets claims set in tribunals’ governing documents are often ambiguous, prompting divergent approaches to implementation. The International Criminal Tribunal for the former Yugoslavia’s (ICTY) qualified state secrets privilege approach and the ICC’s absolute approach are derived from the varied procedures set in their charters. This section reviews this split, emblematic of the two prevailing approaches to state secrets privilege in international criminal law, beginning with the ICTY’s qualified approach.[17] The qualified approach was first applied by the ICTY in the case against General Tihomir Blaškić, the Ahmići Massacre executioner. At dawn on April 16, 1993, General Blaškić sat with his entourage on a wooded hill outside the Lašva Valley. The young Croatian general left nothing to chance. Phone lines were cut.[18] Roads were blocked.[19] Within forty-eight hours, Ahmići’s small civilian population of Muslim Bosniaks was dead.[20] Ruins smoldered for weeks, landmarked only by the remains of two decimated mosques.[21] Over 100 bodies lay under rubble and in open fields, some straining towards the surrounding woods, frozen in their efforts to escape.[22] The Ahmići Massacre was just one episode in the Srebrenica Genocide. The fall of Yugoslavia coincided with rising ethnographic tensions catalyzed by nationalistic rhetoric.[23] Skirmishes grew bloody, militias assimilated into militaries, and ethnic minorities bore the violent consequences of leaders’ scapegoating rhetoric.[24] The UN Security Council, eager to stabilize post-Soviet Europe, established the ICTY to adjudicate then-suspected war crimes.[25] Newly-reformed Croatia ostensibly cooperated with the ICTY’s inquiry, simultaneously disappearing evidence and sabotaging the investigation.[26] Croatian obstruction only ebbed when its new national leadership made some of the state-sponsored obfuscation public in an effort to strengthen European partnerships.[27] But Croatia’s residual concerns for national shame tempered full disclosure of war crimes evidence. An assertion of state secrets privilege halted the ICTY’s investigation into General Blaškić’s crimes. Briefed and argued, the Trial Chamber delivered a ruling to end the Prosecutor and Croatian government’s scrum over disclosure. The Chamber dismissed Croatia’s absolutist vision of the state secrets privilege in favor of the Prosecutor’s proposed qualified approach.[28] The Chamber held that “national security claims by a resistant state do not deserve automatic deference,” that “[t]he state's valid interest in the protection of sensitive information must be weighed against the need for probative evidence,” and that the state’s secrecy claim may be overcome by humanity’s need for evidence.[29] The Chamber proposed a process tailored to accommodate the inquiry while maintaining secrecy: upon a specific assertion of privilege detailing what and why particular material implicates national security, the court must review contested material in camera[30] (and may review ex parte upon request).[31] The tribunal must admit material where the prosecution’s need overcomes the state’s concern for national security and must secrete the rest.[32] An absolute bar to tribunal examination is only appropriate in an “exceptional case” where a state shows that some materials are extremely “delicate” through generic representations and to the tribunal’s satisfaction.[33] The Tribunal applied the new procedure, analyzed the contested material, and unanimously quashed the Prosecutor’s subpoenas.[34]While observers are left to wonder what materials were contested, the powerful procedural precedent remains. Indeed, Blaškić is the closest an international criminal tribunal has ever been to overcoming a state secrets privilege claim because it is the only case in which the court examined the contested material before honoring the claim.[35] The ICTY’s inception and the Blaškić case predate the ICC, the permanent international criminal tribunal and default venue for the world’s most heinous offenses. Reflecting apprehension for the consequences of the Blaškić decision, the ICC’s governing charter (the Rome Statute) stipulated a far more defendant-deferential approach than the ICTY’s state secrets privilege.[36] The Rome Statute permits the ICC to reject its prosecutor’s requests for material or its own subpoenas when a state “confirm[s]” that disclosure to the court would “prejudice” its national security.[37] That deference to a party’s claim without interrogation effectively delegates investigative discretion to national governments. The statute places the fate of the investigation and, “potentially, . . . the case” in the hands of a state “with no direct way for the Court to gainsay[,] second-guess,” or even review “the state’s assessment.”[38] The ICC is optionless if the sought information can only be retrieved with state approval and a state asserts a state secret claim. The prosecutor can attempt to bargain with the state, but any offers or sanctions are at the other side of political quagmires in the ICC Assembly of State Parties or the UN Security Council.[39] At bottom, the successful result of a state secrets claim is all but a foregone conclusion in the ICC, but the ICC has never heard a claim. The ICC’s power to overcome state secrets claims pales in comparison to that of the ICTY. The ICC’s inquiry is defeated by an obstinate state’s mere assertion of the privilege, while the ICTY’s inquiry soldiers on to examine the contested evidence and overcome the assertion when the weight of humanity’s demand for justice overcomes a state’s interest in national security. The ICC is satisfied to keep the contested material a mystery while the ICTY examines it in camera. The ICTY’s qualified state secrets approach presents far greater adjudicative opportunities than the ICC’s absolutist one. II. The Untenable Consequences of an Absolutist Privilege: An American Comparison Contemporary American state secrets doctrine illustrates the perils of an absolute approach. American courts have slowly sandbagged state secrets, ultimately creating a nigh impenetrable barricade barring disclosure.[40] The fallout demonstrates the stopping power of an absolutist privilege in practice and the likely outcome if the privilege was raised in the ICC. The American state secrets privilege was qualified at conception. In United States v. Reynolds, the Supreme Court embraced a balancing test weighing the public interest in limiting the risk of disclosing military secrets against the private interest in relief.[41] Reynolds directed courts to tip the scale toward the public interest if the material wasn’t necessary for the non-claimant’s case or if the non-claimant could find the material elsewhere, albeit at the risk of foregoing the government’s authenticating seal through compelled governmental disclosure.[42] Reynolds further directed future courts to only inspect potentially privileged material when surrounding circumstances show that the claim is unreasonable, relying on the executive principals’ good faith and virtue.[43] The Court ultimately designed a qualified privilege pitting interest against interest with deference to government.[44] In the seventy years since Reynolds, courts have warped deference into devotion. State secrets claims rarely barred disclosure of information at the heart of litigation before the World Trade Center was attacked.[45] Courts feared that adopting an absolutist interpretation of the privilege “and the consequent denial of a forum without giving the plaintiff her day in court . . . [was] indeed draconian.”[46] Today, in a good faith effort to revalue national security interests, courts near-totally accept privilege assertions with lip service to the Reynolds balancing test.[47] Courts even maintain the privilege when “the very subject of the action [is] a state secret,” perhaps a clear showing of necessity and therefore a situation that the Reynolds Court expected to warrant disclosure.[48] For all practical purposes, America’s state secrets doctrine has turned absolute. The doctrinal shift from qualified to absolute has turned the state secrets privilege into a bar to litigation in American courts despite widespread criticism.[49] The public[50] and practitioners[51] alike decry the court’s willingness to foreclose remedy without interrogating the very materials they safeguard. Broadly, the new absolute approach to the state secrets privilege undermines accountability in America.[52] The extinguishing power of an absolutist state secrets doctrine applies to American and international courts alike. Like the American people, the international community fears a doctrinal obstacle that all but bars accountability.[53] The absolute approach to the state secrets privilege in America is a bellwether for those in the international community assessing the ramifications of applying a similar doctrine in international criminal courts. The consequences of the American approach show that an absolute privilege will swiftly defeat a tribunal’s investigations into secretive states. The Qualified Privilege’s Superiority The split between qualified and absolute approaches to state secrets in international criminal law is emblematic of an underlying debate. Advocates of a qualified privilege believe it is necessary to pave an avenue to accountability and to deter future war crimes. Those in favor of an absolute privilege fear that war crimes demand a proportionate military response before a tribunal can hope to apprehend or prosecute perpetrators and that broad secrecy protection is necessary to enable that response. This section does not engage the broader debate; it only seeks to compare the two approaches and analyze which ensures the best chances of legal accountability for Russian war criminals. I conclude that a qualified privilege does produce a better chance at holding Russian war criminals accountable than the absolute approach. There is a third, alternative approach to state secrets doctrine worth evaluating before analyzing the comparative merits of the qualified and absolute approaches: eliminating the state secrets privilege altogether. One might presume that eliminating an inhibitory privilege maximizes the chances of criminal accountability. But eliminating the privilege impracticably ignores compelling countervailing forces. Deference to sovereignty, manifested in a state secrets privilege, is an international political necessity[54] and a representation of the legal principle of state sovereignty.[55] International criminal tribunals cannot abolish the state secrets privilege because political demand and national sovereignty demand it. The qualified and absolute state secrets privilege are the sole subjects of this paper’s analysis because they have proven politically viable and sufficiently deferential to sovereignty. The question remains: which approach maximizes a powerful interest in criminal accountability? A qualified state secrets approach broadens the path to criminal accountability. A qualified approach tempers zealous prosecution with adherence to the principle of presumed innocence. Advocates of a qualified approach do not perceive that compromise as a failure. While they fear that a doctrinal barrier to prosecution might allow some war criminals to run free,[56] they caution against a future where judicial expediency dispenses with deliberation–one where punishment is dictated by vendetta, not fact.[57] Instead, qualified state secrets doctrine advocates assert that accountability can be achieved through dispassionate truth seeking. Blaškić’s qualified approach reflected those ideals of “duty and process” by allowing the court, a neutral magistrate, to examine the contested evidence and weigh competing interests in disclosure.[58] Put simply, an international criminal tribunal’s capacity to hold criminals to account is heightened when the tribunal can evaluate and find that the international interest in justice overcomes the state interest in national security represented by a state secrets claim. The absolute approach trades the prospect of accountability for broader immediate response capabilities. Advocates of an absolute state secrets privilege allow that atrocity is inevitable; power is fragile and control through abusive oppression is a time-tested tactic.[59] The only hope of redress short of a hot war is to protect clandestine statecraft, espionage, and warfare for the sake of, paradoxically, peace.[60] Responses to atrocity are empowered when their tools and tactics are predictably secret and cannot be exposed by a retaliatory (or diligent) war crimes prosecution.[61] An absolutist doctrine may inadvertently protect bad actors in the long-run when a response to atrocity fails and war criminals avail themselves of state secrets claims before a tribunal, but its advocates retain that the risk is a permissible cost for emboldening swift military responses to war crimes.[62] At their core, absolutist advocates believe executive action is better equipped to curtail abuse than adjudication. An absolute state secrets doctrine may limit legal accountability, but it effectively prevents war crimes by enabling immediate response. Four features of the absolute approach show the qualified approach’s superior ability to ensure accountability. The first is the absolutist approach’s self-defeating paradox: you cannot prevent war crimes by creating a system that hides them. Sacrificing chances for adjudication for the sake of emboldening responders creates cycles of violence.[63] Shielding a responding state from accountability may elicit a disproportionate and brutal response in the interest of ending the conflict quickly[64] only to see that escalation repaid twofold.[65] In short, an absolute privilege not only limits chances of criminal accountability, it grows the tribunal’s docket. Conversely, a qualified privilege deters war crimes by permitting a prospect for transparency and accountability. Second, the ramifications of an absolute privilege on a tribunal’s popular support hamper criminal accountability. An absolute state secrets privilege emboldens the sentiment that states can escape scrutiny with a meritless privilege claim. That solemn conclusion undermines investments in international criminal tribunals,[66] eviscerating their chances of holding war criminals to account. Third and most essentially, the absolute approach’s limit on judicial inquiry acutely narrows opportunities for adjudication. Preventing the tribunal from examining contested information and weighing competing interests in disclosure only permits surface-level evaluation of a claim. A tribunal faced with a state secrets claim has a far greater opportunity to reach adjudication if it can examine the contested records and weigh competing disclosure interests than it would if it could only gleam a claim’s merits from bare assertions and circumstance. Between the two, the qualified approach broadens opportunities for accountability while the absolute approach narrows them. Fourth and finally, while the qualified state secrets approach has not yet yielded to a war crimes prosecution’s investigation, it remains the accepted formulation that maximizes the opportunity to hold war criminals accountable. International criminal tribunals have so far failed to overcome state secrets claims, including in the ICTY when a qualified approach empowered the tribunal to interrogate the material in question and weigh competing interests to reach its determination. But the universe of state secrecy claims in international criminal courts is small and doesn’t exhaust hope for overcoming privilege claims. A future tribunal’s prospects for overcoming a state secrets claim are greater when the claim faces a qualified approach’s scrutiny than when it faces an absolute approach’s near-bar to litigation. In short, international criminal tribunals inability to overcome a state secrets claims does not support the notion that qualified and absolute approaches yield equally impassible results. The facial differences between the qualified and absolute approaches show the qualified approach’s superior capacity to deliver accountability in the future. On the whole, a qualified state secrets doctrine better serves the criminal accountability in international criminal tribunals. The absolute approach exacerbates the frequency of war crimes, it inhibits a tribunal’s capacity to pursue war criminals, and it narrows the opportunities to overcome a state secrets privilege claim. Comparatively, the qualified state secrets approach delivers the best chances of overcoming a state secrets claim and, therefore, holding war criminals to account. IV. A Qualified Doctrine Can Hold Russia to Account International criminal tribunals should embrace a qualified state secrets privilege to open avenues to criminal accountability as the investigation into Russian atrocities in Ukraine progresses.[67] If Russian war criminals are brought to trial at the ICC, the risk of a Russian state secrets assertion is near certain.[68] The ICC’s absolute approach effectively lends Russian defendants an easy avenue to escape serious investigation and ultimate accountability. Russia will surely sew disinformation and activate saboteurs to hamper the ICC’s investigation. Russia has a proven pattern: it will ostensibly comply with international accountability mechanisms as it undermines their efforts[69] and, if seriously threatened, close the iron curtain and condemn investigations as illegal or unconscionable.[70] The prospect of good will is nil. Acquiescence fails against this unscrupulous actor. Success necessitates an opportunity for adjudication and an undeterrable dedication to duty. An opportunity to adjudicate, in turn, demands a qualified privilege.[71] Without it, carpet assertions of state secret privilege could cripple the investigation. That sort of blow would likely lead a lame tribunal into obscurity. Though a significant barrier itself, a qualified privilege stands as the only politically viable[72] approach that permits effective adjudication against this criminal superpower. Conclusion This brief analysis addressed the perils of an absolute state secrets privilege and the need for a qualified approach in the ICC’s pursuit of Russian war criminals. Its terms are general and comprehensive scholarship demands more specific examinations of how applying a qualified privilege doctrine will influence future adjudication.[73] Yet the point remains that rising threats to humanity in Ukraine demand a workable solution. International criminal tribunals are uniquely qualified to address the world’s most extreme evils.[74] Put plainly, crimes against humanity deserve a response from humanity and international criminal tribunals are the only criminal mechanisms that exercise humanity’s authority.[75] In an age when human rights are imperiled[76] and international criminal tribunals offer a rare forum for justice,[77] we should buttress international criminal tribunals’ capacity to hold war criminals accountable. That capacity is at dire odds with a quicksand snare eking toward an absolute state secrets privilege. The qualified approach appropriately tempers state interests in sovereignty and national security with multi-state interests in human rights and unencumbered adjudication.[78] The qualified approach raises the hopes of successful prosecution to their zenith. An absolute approach, manifested in the ICC’s governing statute, destroys it. The world cannot acquiesce to forceful assertions of state secrets privilege and risk an outcome where war criminals walk free. Our humanity and the people of Ukraine depend on it. ◍ [1] Trigger warning: this essay includes descriptions of violence and war. [2] Cara Anna, War Crimes Watch: A Devastating Walk Through Bucha’s Horror, AP News, April 9, 2022, https://apnews.com/article/russia-ukraine-europe-war-crimes-7791e247ce7087dddf64a2bbdcc5b888. [3] Id. [4] Id. [5] Olena Harmash, Recalling Bucha Deaths, Zelensky Describes ‘Horrific Year in Kyiv Region, Reuters (Mar. 30, 2023, 8:31 AM), https://www.reuters.com/world/europe/recalling-bucha-deaths-zelenskiy-describes-horrific-year-kyiv-region-2023-03-30/. [6] Emma Graham-Harrison, ‘90% of houses are damaged’: Russia’s Syria-honed tactics lay waste Ukraine towns, The Guardian, March 4, 2022, https://www.theguardian.com/world/2022/mar/04/ninety-per-cent-of-houses-are-damaged-thousands-trapped-in-ukraines-small-towns. [7] Samantha Lock et al., Strike on children’s hospital ‘ultimate evidence that genocide is happening’ - as it happened, The Guardian, March 9, 2022, https://www.theguardian.com/world/live/2022/mar/09/ukraine-news-russia-war-ceasefire-broken-humanitarian-corridors-kyiv-russian-invasion-live-vladimir-putin-volodymyr-zelenskiy-latest-updates. [8] Peter Beaumont et al., Russia Accused of Shelling Mariupol Evacuation Route as Civilians Flee Sumy, The Guardian, March 8, 2022, https://www.theguardian.com/world/2022/mar/08/ukraine-war-civilians-sumy-irpin-refugees-russia; Yaroslav Trofimov, Russian Artillery Kills Ukrainian Civilians Fleeing Kyiv Suburb, Wall St. J., March 6, 2022, https://www.wsj.com/articles/russian-artillery-kills-ukrainian-civilians-fleeing-kyiv-suburb-11646575238. [9] Besieged Ukraine City of Mariupol Buries Dead in Mass Grave, Associated Press, March 9, 2022, https://apnews.com/article/russia-ukraine-mariupol-mass-grave-af9477cd69d067c34e0e336c05d765cc. [10] Yaroslav Trofimov & Alan Cullison, Ukraine Faces Fresh Wave of Attacks Focused on Population Centers, Wall St. J., March 6, 2022, https://www.wsj.com/articles/ukraine-resumes-evacuation-attempts-as-russia-presses-offensive-11646564330; Citing U.S. Intelligence, Biden Says Putin Has Decided to Invade Ukraine, N.Y. Times, March 13, 2022, https://www.nytimes.com/live/2022/02/18/world/russia-ukraine-biden-putin?. [11] Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, International Criminal Court (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and. [12] B. Sidler, Absolute Privileges, 43 Chi.-Kent L. Rev. 55, 55-56 (1966) [13] See generally Principles of Evidence in International Criminal Justice (Karim A. A. Khan, Caroline Buisman, & Christopher Gosnell eds., 2010); Emily Ann Burman, In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals, 80 N.Y.U. L. Rev. 241 (2005). [14] See generally National Security and International Criminal Justice (Herwig Roggemann & Petar Sarcevic eds., 2002); Ruth Wedgwood, The International Criminal Tribunal and Subpoenas for State Documents, 71 Int’l L. Stud. 483, 484-95 (2015); Ariel Zemach, National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute, 47 Israel L. R. 331, 335-45 (2014); David A. Nill, National Sovereignty: Must it be Sacrificed to the International Criminal Court?, 14 B.Y.U. J. Pub. L. 119, 130-35 (1999); Albin Eser & Kai Ambos, The Power of National Courts to Compel the Production of Evidence and its Limits, 6 Eur. J. Crime Crim. L. Crim. Just. 3, 3-18 (1998). [15] Ruth Wedgwood, International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 Leiden J. Int’l L. 635, 644-48 (1998); Wedgwood, supra note 14, 484-90; Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 407-10, 414-23 (2000); see also Guenael Mettraux, Comparing the Comparable: 2006 Military Commissions v. the ICTY, J. Int’l Crim. Just. 59, 60-66 (2007) (comparing American and ICTY national security evidentiary privilege doctrines). [16] The international community already struggles to adjudicate war crimes. David P. Forsythe, The UN Security Council and Response to Atrocities: International Criminal Law and the P-5, 34 Hum. Rts. Q. 840, 840, 862 (2012) (“[T]he [Security] Council has been consistently ‘seized’”); Those Who Commit Atrocity Crimes will ‘Ultimately be Brought to Justice’, Residual Mechanism for Criminal Tribunals Head Tells Security Council, United Nations (Jun. 8, 2021), https://www.un.org/press/en/2021/sc14544.doc.htm (“Delegates [w]arn about [d]angers of . . . [d]enying [g]enocide”). States are turning to dubious alternatives, including universal jurisdiction: legal action taken against a war criminal by a third-party state. Compare Kenneth Roth, The Case for Universal Jurisdiction, 80 Foreign Aff. 150, 150-52 (2001), and Mark R. von Sternberg, A Comparison of the Yugoslavian and Rwandan War Crimes Tribunals: Universal Jurisdiction and the “Elementary Dictates of Humanity,” 22 Brook. J. Int’l L. 111, 155-56 (1996), with Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Aff. 86, 86, 95 (2001) (“The danger lies in punishing the efforts to extremes that risk substituting the tyranny of judges for that of governments”) and Yana Shy Kraytman, Universal Jurisdiction – Historical Roots and Modern Implications, 2 Brussels J. of Int’l Stud. 94, 108-17 (2005). [17] The ICTY and the ICC belong to a small universe of international criminal tribunals. The ICTY is an ad hoc tribunal created by the UN Security Council in 1993 to address crimes committed during the Srebrenica Genocide. About the ICTY, United Nations International Criminal Tribunal for the former Yugoslavia, https://www.icty.org/en/about# (last visited Apr. 10, 2022). The ICC is the only permanent tribunal. It was created in 2002 by the States Parties to the Rome Statute, a body representing a majority of UN members and all but one of the five permanent members of the Security Council at enactment. About the Court, International Criminal Court, https://www.icc-cpi.int/about/the-court (last visited Apr. 10, 2022); International Criminal court, Britannica, https://www.britannica.com/topic/International-Criminal-Court (last visited Apr. 10, 2022). The ICTY and ICC’s personal jurisdictions vary but they share several other features: they address war crimes, were chartered by significantly similar groups of states, and reflect the mainstream conceptions of international criminal law procedure of their time. International Criminal Tribunals, International Justice Resource Center, https://ijrcenter.org/international-criminal-law/internationalized-criminal-tribunals/ (last visited Apr. 10, 2022); Gideon Boas, Comparing the ICTY and the ICC: Some Procedural and Substantive Issues, 47 Netherlands Int’l L. Rev. 267, 282-90 (2000). [18] Tyler Mars, Witness Tells U.N. Tribunal of Shelling, Deaths, L.A. Times, June 16, 1996, https://www.latimes.com/archives/la-xpm-1996-06-13-mn-14466-story.html. [19] Transcript of Witness Abdulah Ahmić Testimony, Prosecutor vs. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, 3539-40, 3545, 3549 (Int’l Crim. Trib. for the Former Yugoslavia Jun. 10-11, 1999) (recounting testimony from a survivor given to the tribunal). [20] Ahmići: 48 Hours of Ashes and Blood, SENSE Transitional Justice Center (2019), https://ahmici.sensecentar.org/. [21] Tadeusz Mazowiecki, Situation of Human Rights in the Territory of the Former Yugoslavia: Final Periodic Report 4 (United Nations Commission on Human Rights, 1995). [22] Jonathan C.R., Ahmici Massacre – Bosnian Turning Point, Wash. Post, June 20, 1993, https://www.washingtonpost.com/archive/politics/1993/06/20/ahmici-massacre-bosnian-turning-point/1b312bef-89ba-4f40-8a99-3dcc6fec6b81/ (“[M]ost were those of elderly people, women, children, and infants.”) (original brackets omitted). [23] Prosecutor v. Kupreskic et al., Case No. IT-95-16, Summary of Trial Chamber Judgment, 1 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000); see generally Janusz Bugajski, Genocide After Emotion: The Postmotional Balkan War, 40 ORBIS 638 (1996); The Fall of Srebrenica and the Failure of UN Peacekeeping, Human Rights Watch (Oct. 15, 1995), https://www.hrw.org/report/1995/10/15/fall-srebrenica-and-failure-un-peacekeeping/bosnia-and-herzegovina#_ftnref10; David N. Gibbs, How the Srebrenica Massacre Redefined US Foreign Policy, 3 Class, Race and Corp. Power, Article 5, 2-4 (2015). [24] Gibbs, supra note 23, at 2-4. [25] S.C. Res. 827, ¶ 2; The Tribunal - Establishment, United Nations International Criminal Tribunal for the Former Yugoslavia, https://www.icty.org/en/about/tribunal/establishment# (last visited Feb. 21, 2022). [26] Ahmići: 48 Hours of Ashes and Blood, supra note 20 (stating that Croatian authorities moved inculpatory archival material beyond ICTY investigators’ reach and Croatian intelligence infiltrated the ICTY Prosecutor’s offices). [27] Id.; R. Jeffrey Smith, Croatia Moves to Expose Its Ugly Secret, Wash. Post, May 18, 2000, https://www.washingtonpost.com/archive/politics/2000/05/18/croatia-moves-to-expose-its-ugly-secret/f3cf2035-524e-45dc-a365-700a517b734c/. [28] The Trial Chamber held that “Articles 19 and 29 of the [ICTY’s governing statute], Security Council resolution 827, the Secretary-General’s Report, implementing legislation of States, and the status of the International Tribunal as a Chapter VII measure” compelled the ICTY to uphold the subpoena because there is “a clear obligation on both States and their officials to comply fully with [the subpoena’s] terms,” invoking state secrets claims does not automatically excuse a State or State official from compliance, and States must comply with requests for assistance or orders issued by the Tribunal. Prosecutor v. Blaškić, IT-95-14-T, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, ¶¶ 86, 150 (Int’l Crim. Trib. for the Former Yugoslavia Jul. 18 1997) (hereinafter “Trial Chamber Decision”); Ruth Wedgwood, Case Analysis: International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 LJIL 635, 639-42 (1998). [29] Wedgwood, supra note 28, at 643 (citing Trial Chamber Decision, supra note 28, at ¶ 131). [30] ICTY, Rules of Procedure and Evidence, Rule 66(C), IT/32/Rev.10 (Dec. 3 1996) (“Where information is in the possession of the Prosecutor, the disclosure of which may . . . affect the security interest of the State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose”). ICTY RPE, Rule 66(C) was subsequently amended. The current Rule 66(C) states: “Where information is in the possession of the Prosecutor, the disclosure of which may . . . affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the [Rules of Procedure and Evidence] to disclose that information.” ICTY, Rules of Procedure and Evidence, Rule 66(C), IT/32/Rev.50 (Jul. 8 2015). [31] Roland Bank, Cooperation with the International Criminal Tribunal for the Former Yugoslavia in the Production of Evidence, Max Planck Yearbook of United Nations Law, 233, 241-51 (2000). [32] Trial Chamber Decision, supra note 28, at ¶¶ 147-48, 148 n. 248 (allowing in camera and ex parte examination of contested material to determine the legitimacy of the state secrets claim). [33] Identities of human intelligence sources, for instance. Trial Chamber Decision, supra note 28, at ¶ 115 (“[T]he Judges of the [ICTY] . . . recognized the need to project the secrecy of information relating to national security.”). [34] Wedgwood, supra note 14, at 663 nn.34-36. Some have pondered how the tribunal might have proceeded had it overruled the state secrets claim only to face a noncompliant Croatia. See, e.g., Peter Malanczuk, A Note on the Judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia on the Issuance of Subpoenae Duces Tecum in the Blaškić Case, 1 Yearbook of Int’l Humanitarian L. 229, 230-36 (2009). Some expect that the geopolitical forces empowering the ICTY prosecutor could compel reconstructing Croatia. Asa W. Markel, The Future of State Secrets in War Crimes Prosecutions, Mich. St. J. Int’l L. 411, 412 (2007) (regarding potential noncompliance with an ICC order); Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities, 95 Am. J. Int’l L. 7, 12 (2001); Eric Gordy, The Blaškić Trial: Politics, the Control of Information and Command Responsibility, 36 Southeastern Europe 60, 80-82 (2012). Others argue that the ICTY would be subject to Croatia’s whims. Anne-Laure Chaumette, The ICTY’s Power to Subpoena Individuals, to Issue Binding Orders to International Organisations and to Subpoena Their Agents, 4 Int’l Crim. L. Rev. 347, 380-89 (2004); Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 418 (2000). I expect that both could be true; Croatia would relinquish some material and keep damning documents secret, thereby achieving some degree of international collegiality while maintaining a degree of dignity. [35] Markel, supra note 34, at 417-19. [36] Markel, supra note 34, at 419-21. [37] Rome Statute of the International Criminal Court art. 72, Jul. 17 1998, U.N., UN Doc. A/CONF. 183/9 (hereinafter “Rome Statute”). The “prejudice” standard was accepted in lieu of proposals that strengthened ICC compulsion power, including a draft provision that required a confirmation of “serious prejudice” (Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands art. 82(55), para. 2, option 2, subparas. (c)-(d), Feb. 4, 1998, U.N.G.A., UN Doc. A/AC.249/1998/L.13 (hereinafter “Zutphen Report”)) and another that vested the ICC with absolute compulsion power (Zutphen Report at art. 82(55), para. 2, option 1 (“A State Party shall not deny a request for assistance from the Court.”); Draft Statute for the International Criminal Court in Report of the Preparatory Committee on the Establishment of an International Criminal Court art. 91, para. 8, Apr. 14, 1998, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, UN Doc. A/CONF/183/2/Add.1). [38] This standard holds true even when the ICC is given complementary authority relative to a national prosecution because the national prosecution has proven “unwilling or unable genuinely” to carry out an investigation or prosecution. Wedgwood, supra note 14, at 647. [39] Rome Statute, supra note 37, at art. 72(7)(a)(ii). [40] See, e.g., Ian MacDougall, CIPA Creep: The Classified Information Procedures Act and Its Drift in Civil National Security Litigation, 45 Colum. Hum. Rts. 668, 684-85 (2013). Some scholars dispute the conclusion that modern American state secrets doctrine is absolute. See James Zagel, The State Secrets Privilege, 50 Minn. L. Rev. 875, 888-903 (1966). They comprise the minority view, one that this paper does not engage for the sake of brevity. Future scholarship may apply this minority view to the ICC’s potential prosecution of Russian war crimes in Ukraine. [41] United States v. Reynolds, 345 U.S. 1, 7-10 (1953); Carrie Newton Lyons, The State Secrets Privilege, 11 Lewis & Clark L. Rev. 99, 103 (“A critical aspect of the Reynolds holding is the Court’s formulation of a balancing test . . . . Essentially, courts are to weigh the showing of necessity made by those seeking the information against the appropriateness of the government’s invocation of the privilege.”). [42] Reynolds, supra note 41, at 11 (“[T]he showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.”). [43] Reynolds, supra note 41, at 8 (“[The privilege] is not to be lightly invoked. . . . The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing that the privilege is designed to protect”). [44] The Reynolds parties settled after the Supreme Court remanded. John Ames, Secrets and Lies: Reynolds’ Partial Bar to Discovery and the Future of the State Secrets Privilege, 39 N.C. J. Int’l L. 1067, 1073 (2014). The government effectively kept secret the records of an ill-fated U.S. Air Force flight that cost the lives of the plaintiff-widows’ spouses. Those records were disclosed in 2000, revealing that the only potentially sensitive information at risk was how a B-29 plane operated. Herring v. United States, 424 F.3d 384, 389 (3d Cir. 2005) (“There was no fraud because the documents, read in their historical content, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29.”). [45] MacDougall, supra note 40, at 685 (“Prior to 9/11, courts considered this denial of forum remedy rare.”) (citing Fitzgerald v. Penthouse Int’l Ltd., 776 F.2d 1236, 1241-42 (4th Cir. 1985); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1299-1307 (2007); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1299-1307 (2006); Steven D. Schwinn, The State Secrets Privilege in the Post-9/11 Era, 30 Pace L. Rev. 778, 779-81 (2009). [46] In re United States, 862 F.2d 472, 477 (D.C. Cir. 1989). [47] See, e.g., David Rudenstine, The Courts and National Security: The Ordeal of the State Secrets Privilege, 44 U. Balt. L. Rev. 37, 59-81 (2014). [48] El-Masri v. United States, 479 F.3d 296, 306 (4th Cir. 2007) (affirming dismissal by a claim involving a six-month detention involving torture due to a mistaken identity because the detention and torture were deemed states secrets); MacDougall, supra note 40, at 684-93. [49] MacDougall, supra note 40, at 686; Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991, 1001-06 (2018). [50] See, e.g., Elizabeth Goitein & Frederick A. O. Schwarz, Jr., Congress Must Stop Abuses of Secrets Privilege, Brennan Center for Justice, December 14, 2009, https://www.brennancenter.org/our-work/research-reports/congress-must-stop-abuses-secrets-privilege. [51] See, supra note 39. [52] Aziz Huq, Dangerous Discretion, State Secrets, and the El-Masri Rendition Case, Jurist, Mar. 12, 2007, https://www.brennancenter.org/our-work/research-reports/dangerous-discretion-state-secrets-and-el-masri-rendition-case; Daniel J. Huyck, Face to Black: El-Masri v. United States Validates the Use of the State Secrets Privilege to Dismiss “Extraordinary Rendition Claims, 17 Minn. J. Int’l L. 435, 457-58 (2008) (“dismissing El-Masri’s claim based on the state secrets privilege blocks almost every formal channel for government accountability”); Rudenstein, supra note 47, at 37-45. [53] Zemach, supra note 14, at 349 (“[E]ven weak states are in a position to defy international justice”); Wedgwood, supra note 28, at 647 (“[T]he ICC . . . must defer to national prosecutions of war crimes, unless the nation state is ‘unwilling or unable genuinely’ to carry out the investigation or prosecution.”) (quoting Rome Statute, supra note 37, at art. 17); Id. (“[T]he ICC cannot demand to see the national security documents on which to ground an independent assessment of prejudice to national security, nor can the ICC presume to weigh in the balance the relative equities of protecting national security information versus the importance of pursuing a prosecution. If the state’s refusal to turn over national security information is made in good faith, that is the end of the matter, and potentially, the end of a case.”). [54] Wedgwood, supra note 28, at 646 (discussing the political evolution of the ICC’s state secrets privilege evolution); see supra note 34. [55] Michael J. Struett, The Transformation of State Sovereign Rights and Responsibilities Under the Rome Statute for the International Criminal Court, 8 Chapman L. Rev. 172, 172-73 (2005); Adrian Jones, Continental Divide and the Politics of Complex Sovereignty: Canada, the United States and the International Criminal Court, 39 Canadian J. Pol. Sci., 277, 237-42 (2006). [56] Wedgwood, supra note 14, at 483 (“The internationalization of war crimes prosecutions is seen as a way to restore confidence and allow reconciliation.”); Internationalized Criminal Tribunals, International Justice Resource Center, https://ijrcenter.org/international-criminal-law/internationalized-criminal-tribunals/ (last visited Mar. 13, 2022) ("International criminal tribunals exist to investigate and prosecute individual people for serious violations of international criminal law or international humanitarian law – such as war crimes, genocide, and crimes against humanity – when national authorities are unable or unwilling to do so."). [57] Sang Hyun-Song, The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, United Nations, https://www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law; Wedgwood, supra note 28, 644 (noting that the ICTY predicted that “that many national governments may resist [disclosure], despite the ethical standards that surround the international judiciary, for there is often a reluctance to disseminate sensitive information even to a highly regarded official of foreign nationality.”); compare James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 9-29 (2009) with Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 10-25 (2001). [58] Wedgwood, supra note 28, 644 (“[a]ny blanket exemption for national security information could cripple the enforcement of command responsibility, since the records of military operations lie at the center of proof of a commander's conduct.”). [59] Emily Sohn, Is War Inevitable? Debate Ranges Among Anthropologists, NBC News, July 18, 2013, https://www.nbcnews.com/sciencemain/war-inevitable-debate-rages-among-anthropologists-6c10680040; Frank Vogl, Is Genocide Inevitable?, The Globalist, June 15, 2015, https://www.theglobalist.com/is-genocide-inevitable/. [60] Lynn F. Fischer, Espionage: Why Does it Happen?, Department of Defense Security Institute, 1, https://www.hanford.gov/files.cfm/whyhappens.pdf; Less Pressman et al., Sabotage and National Defense, 54 Harv. L. Rev. 632, 644-46 (1940). [61] Thomas G. Stacy, The Constitution in Conflict: Espionage Prosecutions, the Right to Present a Defense, and the State Secrets Privilege, 58 U. Colo. L. Rev. 177, 237-46 (1987); Erin M. Stilp, The Military and State-Secrets Privilege: The Quietly Expanding Power, 55 Catholic U. L. Rev. 831, 836-37 (2006). This factor does not assume that a responding force’s efforts are necessarily criminal; it merely assumes that secrecy makes them more effective. See, e.g., Note, The Military and State-Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 Yale L. J. 570, 570-73 (1982). [62] Wedgwood, supra note 14, at 494 (“In a world in which it is dangerous to compromise human intelligence sources and the capability of national technical means, this is a wise exception.”). [63] The court worried that reducing weight on the scale by yielding to “Croatia's claim of an unbounded national security privilege would shield ‘documents that might prove of decisive importance to the conduct of trials’ and would ‘be tantamount to undermining the very essence of the International Tribunal's functions.’” Wedgwood, supra note 14, at 493 (citation omitted). [64] Conor Friedersdorf, Using the ‘Top Secret’ Stamp to hide Lies and War Crimes, The Atlantic, Apr. 8, 2014, https://www.theatlantic.com/politics/archive/2014/04/using-the-top-secret-stamp-to-hide-lies-and-war-crimes/360228/; Claire Finkelstein, How the State Secrets Doctrine Undermines Democracy, Bloomberg Law, Mar. 28, 2022, https://news.bloomberglaw.com/us-law-week/how-the-state-secrets-doctrine-undermines-democracy. [65] Lionel Beehner, Torture, the United States, and Laws of War, Council on Foreign Relations, Nov. 11, 2005, https://www.cfr.org/backgrounder/torture-united-states-and-laws-war. [66] Facing Political Attacks, Limited Budget, International Criminal Court Needs Strong Backing to Ensure Justice for Atrocity Crimes, President Tells General Assembly, United Nations, Oct. 29, 2018, https://www.un.org/press/en/2018/ga12084.doc.htm; Jane Stromseth, Is the ICC Making a Difference?, Just Security, Dec. 6, 2017, https://www.justsecurity.org/47717/icc-making-difference/. [67] Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 State Parties and the Opening of an Investigation, International Criminal Court, March 2, 2022, https://www.icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine. [68] Anthony Deutsch & Toby Sterling, ICC Faces “Myriad Challenges” to Prosecute War Crimes in Ukraine, Reuters, March 4, 2022, https://www.reuters.com/world/icc-faces-myriad-challenges-prosecute-war-crimes-ukraine-2022-03-04/; Zoha Siddiqui et al., Could Putin Actually Face Accountability at the ICC?, Foreign Policy, March 4, 2022, https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/; Haggae Matsiko, Are Super Powers Undermining the ICC?, Global Policy Forum, June 9, 2010, https://archive.globalpolicy.org/security-council/security-council-as-an-institution/the-power-of-the-veto-0-40/the-veto-and-the-icc-in-the-security-council/49195-are-super-powers-undermining-the-icc.htm; Morgan Chalfant, Secretive Russian GRU Tests Trump with Brazen Tactics: Russia’s Most Aggressive Spy Agency Poses Global Challenge, The Hill, September 13, 2018. [69] Filippa Lentzos & Jez Littlewood, How Russia Worked to Undermine UN Bioweapons Investigations, Bulletin of the Atomic Scientists, December 11, 2020, https://thebulletin.org/2020/12/how-russia-worked-to-undermine-un-bioweapons-investigations/; Derek Averre & Lance Davies, Russia, Humanitarian Intervention and the Responsibility to Protect: The Case of Syria, 91 Int’l Aff. 813, 823 (2015). [70] Andrei Kolesnikov, Russian Ideology After Crimea 18-20 (Carnegie Moscow Center, 2015); Mikhail Suslov, Russian Conservatism as an Ideology: The Logic of Isolationism in Contemporary Russian Conservatism 88-94 (Mikhail Suslov & Dmitry Uzlaner eds., 2019); Alexandra V. Orlova, Sovereignty, Dissent, and the Shaping of International Consensus Around Human Rights: An Examination of Russian “Disengagement” from the European Court of Human Rights, 35 Ariz. J. Int’l Comp. L. 435, 462-66 (2018). [71] A qualified privilege could be effectuated by amending the Rome Statute to reflect the qualified approach (Rome Statute, supra note 37, at arts. 121-22 (prescribing the process for ratifying amendments); Assembly of State Parties, Amendment to Article 8 of the Rome Statute of the International Criminal Court (Intentionally Using Starvation of Civilians), C.N.394.2020.TREATIES-XVIII.10.g (2019) (recently amending the Rome Statute)) or establishing an ad hoc tribunal to address Russian war crimes in Ukraine akin to the ICTY (Guénaël Mettraux, General Remarks – The Creation and Jurisdiction of the Ad Hoc Tribunals in International Crimes and the Ad Hoc Tribunals 3-4 (2010); Overview, Rome Statute of the International Criminal Court, https://legal.un.org/icc/general/overview.htm (last visited Mar. 14, 2022)). [72] This paper does not address the important practical question of whether and how the State Parties to the Rome Statute can adapt the Rome Statute to include a qualified state secrets privilege. Others have argued that it is possible under the very circumstances presented by the Russian atrocities in Ukraine: a hyper-secretive state with exclusive domain over necessary information and an international community uniformly opposed to placation. Markel, supra note 34, at 419-34; Wedgwood, supra note 14, at 495 (noting that the Blaškić procedure has yet to prove “a workable institution or a stillborn structure” in the ICC). [73] Kevin M. O’Connell, Thinking About Intelligence Comparatively, 11 Brown J. World Aff. 189, 191-98 (2004) (implying that American, British, Russian, Chinese, and Israeli governments are among the most secretive in the world); Monroe Leigh, The United States and the Statute of Rome, 95 Am. J. Int’l L. 124, 128 (2017) (“[An] important aspect of the [United States]’s objection to the treaty [to establish a permanent International Criminal Court] is that, if . . . the ICC exercises jurisdiction over a member of one of the military services or over a civilian official such as the secretary of defense . . . , the ICC will place itself in the position of passing judgment on the legality under international law of U.S. national-security decisions.”); Simon Chesterman, The Spy Who Came In from the Cold War: Intelligence and International Law, 27 Mich. J. Int’l L. 1071, 1123-24 (2006). [74] Compare Patricia M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court, 5 Wash U. J. L. 87, 113-118 (2001) (recounting the ICTY’s unique advantages) with Bartram S. Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 Yale J. Int’l L. 383, 430-33 (1998) (arguing international criminal tribunals’ failures). While many scholars agree that international criminal tribunals are best suited for their challenging tasks, they contend that they achieve limited results. Christopher Rudolph, Constructing an Atrocities Regime: The Politics of War Crimes Tribunals, 55 Int’l Org. 655, 685-91 (2003). [75] Rome Statue of the International Criminal Courts, United Nations Office of Legal Affairs (1998), https://legal.un.org/icc/general/overview.html; Clare Frances Moran, The Problem of the Authority of the International Criminal Court, 18 Int’l Crim. L. Rev. 883, 886-92 (2018); Tonya J. Boller, The International Criminal Court: Better than Nuremberg?, 14 Ind. Int’l & Comp. L. Rev. 279, 313-14 (2003). [76] Michelle Bachelet, U.N. High Commissioner for Human Rights, Remarks on the State of the World’s Human Rights after COVID-19 at the Network 20/20 Summit (Oct. 29, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=26445&LangID=E. [77] International criminal tribunals also have the capacity to establish and maintain human rights norms. See, e.g., Hyun-Song, supra note 57; Tara Kibler, The Nuremberg Trials and Their Profound Impact on International Law, HeinOnline Blog (Oct. 1, 2019), https://home.heinonline.org/blog/2019/10/the-nuremberg-trials-and-their-profound-impact-on-international-law/; Wolfgang Schomburg, The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights, 8 Nw. J. Int’l Hum. Rts. 1, 1-2 (2009). [78] Roggemann, National Security and Protection of the State in National and International Criminal Procedure: Systematic and Comparative Aspects, in National Security and International Criminal Justice, supra note 14, at 3-10.

Manavendra Gupta is a 2023 LL.M. candidate at Berkeley Law. The average consumer often experiences a power imbalance when embroiled in disputes with giant corporations. These legal conflicts arise in various forms and exist globally. Be it homebuyers betrayed by builders who divert their deposits and fail to deliver homes on time, patients in hospitals during COVID-19 whose medical bills were not honored by insurance companies, consumers who are duped through improperly inflated utility bills, or customers whose grievances are ignored by e-commerce giants. Litigation seldom benefits the average person. The endless resources of corporations for inflicting long-drawn, expensive court battles dwarf the meager resources of working families. In these cases, a method of redress having the virtues of both a fair and cost-effective mode of adjudication and a firm and rapid enforcement of relief is required. This kind of adjudication comes in the mechanism of a smart contract (“SC”). N. Szabo, “Smart Contracts: Building Blocks for Digital Markets”, Extropy 16 (1996). Combining SC and traditional arbitration merges SC's speed with arbitration's fairness. This creates a robust dispute resolution model. SC is noted for its instant enforceability. It works on an “if-then” code model and is embedded with a prescribed criterion. When the criterion is met, the blockchain automatically releases the virtual currency kept in escrow. Think of it like a vending machine, where you decide what you want and insert money into the device. Once you click on the button or insert the code for the item of the same value, the machine automatically releases it. With a slight tweak, SC can replace the traditional consumer contract that inevitably favors the corporation. The problem with SC is that its execution is a little too rapid, and the process lacks any method of adjudication. Some adjudication becomes essential because of SC’s inherent limitations, such as permanence and immutability. SC is also unable to account for commercial realities between contracting parties. If SC is used alone, consumers would execute the contract immediately, but corporations would feel aggrieved for not being heard on their objections. Without due adjudication, execution of SC would be quick but not necessarily fair. On the other hand, arbitration promises fast and cost-effective adjudication but lacks a mechanism for speedy enforcement of the award. If arbitration is used alone, assuming consumers have favorable awards, then they will still need to resort to the very courts they wanted to avoid for enforcement. Many consumer contracts include the arbitral remedy, but this has proved highly ineffective. The corporation either appoints the arbitrator unilaterally or else habitually challenges the award, preventing speedy enforcement. For consumer disputes, the “SC-arbitration” model with a fusion of SC and arbitration is the best of both worlds. Under this scheme, the consumer can use the transparent digital ledger in the SC blockchain to easily understand contractual obligations, monitor the transactions undertaken by the corporation, and ensure that funds are utilized appropriately. SC may also suit a corporation that faces defaults by its subscribers. When a dispute arises, a short cooling-off period can be mandated before execution of the SC for the aggrieved party. This quickly invokes the arbitral remedy. Arbitration can adapt to evolving technologies and even operate virtually. Therefore, it can be embedded in the SC itself. Parties can agree either to nominate an arbitrator in advance from a randomly generated list on the SC blockchain or opt for institutional arbitration. The mode of appointment should be required when “signing” the SC to prevent a unilateral appointment of an arbitrator by the corporation. SC can then make the award of the arbitrator the prescribed criterion required to be met in its blockchain for contract execution. The “multi-sig” algorithm can be used for this purpose. See K. Itakura and K. Nakamura. A public-key cryptosystem suitable for digital multisignatures. NEC Research and Development, 71:1–8 (1983). Multi-sig confers rights on multiple users, including third parties, to execute a digital transaction. The arbitrator can (as one such user), upon delivering the award, transfer the virtual currency stored in the blockchain instantaneously to the successful party with the mere click of a button. Even in the absence of virtual currency, where parties are dealing in fiat money, SC can securely encrypt the bank account details of parties in the blockchain. The bank can be added to the multi-sig list and can hold another key to execute the SC upon notification by the arbitrator. Thus, the SC-arbitration model will prove to be a fair, speedy and self-contained remedy. The SC-arbitration model can significantly solve the problem of unequal bargaining power in commercial transactions and deliver a just outcome. Where SC will be deficient in adjudication, the arbitral method will provide fair decision-making. When arbitration is weak in enforcement, SC provides strength. As the world is rapidly shifting from brick-and-mortar establishments to AI and e-commerce, the SC-arbitration model simply and efficiently resolves global disputes.

About the Author: Mr. Mayank Jain is a 3rd year B.A. LL.B (Hons.) student at O.P. Jindal Global University. Image by Official U.S. Navy Page available here. Introduction Under Paragraph 6 of the United Nations Convention on the Law of the Sea (UNCLOS) Preamble, the area of the seabed is regarded as res communis, i.e., the common heritage of mankind. This essentially means that all resources that can be explored and exploited in the seabed area, like polymetallic nodules and sulphides, are for the benefit of the global community. The 1994 Agreement, which covers the implementation of Part XI of UNCLOS, created the International Seabed Authority (ISA) for this purpose. The ISA was created with the intent to (i) control all forms of exploration and exploitation activities in the seabed area and (ii) protect the marine environment from the harmful effects of deep seabed mining. The biggest shortcoming of the ISA is the fact that the body to date has only been able to issue exploration contracts; no actual seabed mining activity has taken place. Thus, the regulatory framework envisioned under this body is merely theoretical and is yet to manifest into reality. To conduct deep seabed mining, prior permission must be granted by the ISA. Annex III Art. 3 of UNCLOS sets out two preconditions to conduct deep seabed mining: (i) there must be a State party, and (ii) approval must be taken from the regulatory body. This means that mere signatories are disenfranchised from carrying out mining projects under the UNCLOS regime. Furthermore, Art. 137 of UNCLOS prohibits unilateral seabed mining, thus, making ISA approval mandatory. To fulfil the objective of the common heritage of mankind, Art. 140 of UNCLOS states that the ISA must distribute any financial or other economic benefits derived from the activities in the seabed region to other nations. Analysing the US Model This piece primarily aims to analyse the following question: do the rules of the ISA’s mining regime create any legally binding obligations for non-state parties or signatories? Art. 38(1)(b) of the Statute of the International Court of Justice lists international customs as a source of law. The International Court of Justice (ICJ) in the North Sea Continental Shelf case concluded that for a rule to be deemed as customary international law, it must envisage two elements: (i) consistent and wide State practice, and (ii) opinio juris, i.e., following such a rule because it is presumed to create legally binding obligations. In Eritrea-Ethiopia Claims Commission, the Commission adopted the “nearly universal acceptance” as the standard for determining whether an impugned rule had customary status. The International Law Commission (ILC) has noted that the number of parties to a treaty may be a significant factor in determining whether a particular rule in the instrument reflects customary status. Many States that do not support the regime also argue that deep seabed mining outside the Convention would not only be viable but also not legal. Ever since the implementation of Part XI, there has been overwhelmingly consistent State conduct evidencing prohibition of unilateral seabed mining. This regime has also allowed for all claims regarding seabed mining to be dealt under a centralised system. Leaving aside the exception of Kosovo, nearly 165 countries have acceded to UNCLOS, around 150 of those countries have ratified the 1994 Agreement, and nearly 30 States sit as observers at ISA. Even the mere observer status is testimony to the fact that these States recognise the existence and the functions to be carried out by ISA. Art. 7(1) of the 1994 Agreement provided for provisional application of the agreement for certain actors including those that were signatories to the 1994 Agreement. The United States of America (US) was also granted this provisional status as it had shown its partial interest in the regime by signing the agreement. The US believed that the 1994 Agreement intended to restructure the mining regime on the free market concept, which is in line with the US narrative that the common heritage of mankind is analogous to private economic activity. However, the failure of the US to ratify the Convention resulted in the expiry of their provisional application on 16 November 1998. The US still actively engages in the working of the ISA as an observer. The empirical case study of the US helps to answer whether the mining regime has gained customary status. Art. 34 of the Vienna Convention on the Law of the Treaties highlights the sovereign independence and equality of States by stating that a Convention creates no legal obligations or rights for a State which has not consented to such an instrument, i.e., the State is a Non-State Party (NSP). One such NSP is the US which, despite participating heavily in the negotiations leading to the formulation of the UNCLOS, decided not to ratify it due to its apprehensions of a breach of its sovereignty. It is imperative to observe how the US has responded to the guidelines that have been formulated by ISA. The US has made it clear that the regulatory mining regime that purports the concept of the common heritage of mankind of seabed resources is against the essence of private economic activity. The US enacted the Deep Seabed Hard Mineral Resources Act, 1980 (Act) to explore and exploit seabed mineral resources. The US has granted licenses under the Act to a corporation called Lockheed Martin; however, the company has expressed concerns that it would be unable to carry out any activity in the seabed area because the legal rights of that area are protected under the UNCLOS, which includes the ISA. Even the organisation that administers the Act, US National Oceanic and Atmospheric Administration (NOAA), along with the Department of State have acknowledged the concerns of Lockheed Martin of requiring international security of tenure. Surprisingly, both NOAA and the Department believe that the US would have to accede to the UNCLOS to maintain international security. The US position became amply clear in 2017 when the time came to renew the mining licenses of the various organisations. NOAA stated that, (i) the purpose of the Act was to allow deep seabed mining activities pending the US ratification of UNCLOS, and (ii) the Act may give organisations rights domestically but not internationally, as the USA fails to go through the internationally recognised process mandated by the ISA for State parties to the UNCLOS. Hence, this creates a dilemma for license holders under the Act, as their legal right does not exist in the real world. This makes it clear that even despite being an NSP, the US has actively regarded the mining regime vis-à-vis the ISA, as an inherently legal obligation. Resultantly, to conduct deep seabed mining, Lockheed Martin holds two contracts through its United Kingdom (UK) subsidiary (UKSRL). This has been possible as the UK is a State party to UNCLOS and State parties do have the power under the Convention to sponsor private corporations to conduct seabed mining activities under the ISA. An analysis of the US case demonstrates that even NSPs view the ISA regulations to be legally binding. Furthermore, under the US Act, a Deep Seabed Revenue Sharing Trust Fund was created with the intention of sharing the extracted resources with the international community. This Trust Fund fulfils a very similar purpose which is enshrined in the Preamble of the UNCLOS and for which the ISA was created: the common heritage of mankind. Assessing the situation from the viewpoint of the sole NSP, i.e., the US, it can be reasonably assumed that ISA approval when it comes to seabed mining is the non-regression standard. This means that at a point in time if a State adopts any precautionary strategy other than requisite ISA approvals before conducting deep seabed mining, the same would be insufficient and not conform to international standards. The purpose of ISA was never to mitigate all forms of harm that are accrued as a result of deep seabed mining activities but to control and regulate the harm caused to the marine environment. Conclusion It is difficult to say that the sole model of an NSP such as the US following ISA regulations is sufficient to prove the customary status of the Authority. Furthermore, the lack of implementation of these contracts by ISA cast a doubt on the legal status of the regime. A question that also requires due consideration is whether States which lack the technological and capital capability to conduct deep seabed mining activity, irrespective of their obedience to the UNCLOS, regard the ISA to have a legal authority. Nevertheless, post the implementation of the ISA contracts in the near future, a clearer picture regarding the customary character of the regime would be carved out. If this mining regime envisaged under the UNCLOS can become a source of law under Art. 38(1)(b) of the Statute of the International Court of Justice, it would be a boon for the protection of the marine environment as well as the industrial sectors dependent on seabed resources.

About the Author: Kosha Doshi is a fourth-year B.A LL.B (Hons.) student at Symbiosis Law School in Pune, India. Her primary areas of interest include Cyber Security, Artificial Intelligence, Data Infrastructure, Fintech, and TMT. Image by Solen Feyissa available here. INTRODUCTION TikTok, the popular social media video app owned by Chinese tech company ByteDance, has recently come under scrutiny for its privacy policies and potential ties to the Chinese government. With close to 95 million users in the United States alone, and an expected audience of 103 million by 2025, TikTok’s widespread popularity is undeniable. However, the app’s vast data collection practices and potential for national security risks have become concerning for many. In August 2020, the Trump administration attempted to ban TikTok by an executive order, but this was shut down by the federal courts. The Biden administration is currently evaluating the risk posed by apps connected to foreign adversaries, including TikTok. Meanwhile, members of Congress, including Senator Marco Rubio and Representatives Mike Gallagher and Raja Krishnamoorthi, have introduced a new bill to ban TikTok and ByteDance from operating in the United States. The bill, entitled the ANTI-SOCIAL CCP Act, aims to protect Americans from the threat posed by certain foreign adversaries using social media companies for surveillance, data collection, and censorship. This blog will delve into the ongoing controversy surrounding TikTok and its potential impact on privacy and national security. It explores the risks and benefits of this popular social media app and considers the potential consequences of its continued operation in the United States. NAVIGATING THE LEGAL LANDSCAPE A new bill has been introduced in the United States that has the potential to drastically impact foreign social media companies’ operations in the country. At its core, the bill directs the President of the United States to effectively ban certain foreign social media companies, specifically ByteDance and TikTok, from operating in the country. The legislation is written in such a way that the call for a ban could theoretically be expanded in the future to cover other foreign social media platforms that are deemed risky to U.S. national security. The bill outlines that 30 days after it is enacted, the President will use their powers under the International Emergency Economic Powers Act (IEEPA) to “block and prohibit all transactions in all property and interests of property of a social media company”. It indicates that the President would not have to declare a national emergency before invoking IEEPA and would not be limited by the IEEPA’s regulation regarding the import or export of information or informational materials. For a social media company to be blocked and prohibited, it must satisfy at least one of the following criteria: The company is domiciled, headquartered, or has its principal place of business in, or is organized under the laws of a “country of concern”. A country or entity of concern directly or indirectly owns, “controls with the ability to decide important matters,” or holds 10% or more of the company’s voting shares or stocks. The company uses software or algorithms that are controlled, or whose export is controlled, by a country or entity of concern. A country or entity of concern can substantially, directly or indirectly, influence the company to share data on U.S. citizens or modify its content moderation practices. ByteDance and TikTok satisfy these criteria, and the bill also defines a “country of concern” and an “entity of concern” in a way that enables additional, future applications of this IEEPA social media platform ban. The bill refers to the term “foreign adversary” in the Secure and Trusted Communications Networks Act of 2019 to define a “country of concern”. From a national security perspective, it is reasonable to consider the risk posed by entities that are part of a foreign political party, government, or military, and especially if that entity is a security agency. The reference to individuals subject to “substantial influence, directly or indirectly, from a country of concern” also appears reasonable, as there are certainly foreign countries where law enforcement agencies or intelligence services are known to place intense, coercive pressure on individuals at technology companies to compel them to cooperate with the state. This bill has far-reaching implications for foreign social media companies operating in the United States and could result in a ban on their operations if they are deemed to be a risk to U.S. national security. TIKTOK AND THE NEW FRONTIER OF CYBERSECURITY The concern surrounding TikTok has centered on the possibility that it may provide the Chinese government with data that poses a significant threat to cybersecurity. The threat scenario is based on two key assumptions: first, that the data generated by TikTok provides the Chinese state with valuable insights into systemic US vulnerabilities, and second, that the Chinese government can access this data due to TikTok’s parent company, ByteDance, being based in China. However, the Trump administration’s approach to addressing these concerns through an executive order and other proposals has been criticized for failing to differentiate between the various security risks posed by TikTok. These risks include data collection on US government employees and individuals, censorship of information in and outside of China at Beijing’s request, and the spread of disinformation on the platform. The ANTI-SOCIAL CCP Act offers a clearer articulation of these risks by breaking them down into two main categories: a company sharing or being compelled to share data with a government or entity of concern, and a company having its content moderation practices substantially influenced by a government or entity of concern. It is important to clearly distinguish between these risks as they require different mitigation actions and their likelihood and severity vary. The bill’s list of four prohibition criteria does a better job than the Trump administration’s executive order in separating these risks, but the bill could benefit from linking specific mitigation actions to specific risks. TikTok does collect a large amount of data on its users, like other social media platforms, but the lack of privacy and security regulations in the US make a significant amount of information on Americans from political preferences and demographic information to real-time GPS data and data on military personnel widely available for purchase. The bill’s proposed complete ban on TikTok may not be the most appropriate or sustainable solution to the security risks posed by foreign platforms. This raises the issue of whether a blanket solution for various risks related to content moderation, data privacy, and others is the most suitable and sustainable approach in the long run. A more effective policy framework could be one that offers a range of possible responses to the security risks posed by foreign platforms, such as a complete ban in cases where risk mitigation measures are deemed insufficient, or a more moderate approach that imposes specific content or security requirements on the company. CONCLUDING REMARKS The Biden administration has made significant efforts to address the concerns surrounding the use of foreign mobile applications, particularly TikTok and WeChat. The revocation of the Trump-era executive orders, which aimed to ban these platforms, was a positive move. The new executive order signed by President Biden, entitled “Protecting Americans’ Sensitive Data From Foreign Adversaries,” highlights the importance of evaluating potential threats to national security through rigorous and evidence-based analysis. Furthermore, the increasing involvement of security review bodies, such as CFIUS, in cross-border investment reviews highlights the concerns over national security creep. CFIUS’s reported discussions with TikTok suggest that the interagency committee is looking for ways to mitigate security risks by requiring companies to address these risks rather than undoing transactions. The need for a federal consumer data privacy law is pressing, given the fears that foreign governments may obtain personal information of US citizens through foreign mobile applications. This law must provide a balanced approach to cross-border data transfers that takes into account both national security interests and the potential harmful effects of data localization. Without such a law, the US will continue to face challenges in regulating the growing number of foreign technology companies. In conclusion, the Biden administration’s approach to TikTok and other foreign mobile applications is a step in the right direction. The need for a nuanced and balanced approach to addressing national security and privacy concerns remains crucial for maintaining a democratic society.

Alex MacLennan (J.D. Candidate, Class of 2024) is a contributor. His interests include international and comparative law, US and foreign elections, history, and economic policy. Alex holds a B.S. in Industrial Design from the University of Cincinnati. Before law school, he did product design work for various companies. He speaks enough French and German to be useful in continental European travel. The American ocelot population numbers less than 120 members, making it “one of America’s most endangered cats.” These felines have litters of two or three kittens and a fine fur that makes them targets for hunters. One thing they do not have is a passport. But why should they need a passport given that immigration laws do not apply to wild animals? Well, even though animals may not be interested in borders, borders are interested in them. A growing number of border walls now restrain the movement of animal populations—the endangered American ocelot included. Typically built to stifle human movement, these walls now threaten animal movement with a particularly detrimental effect on migratory and threatened species. This article looks at the scope of this issue, where it exists, and potential solutions. The Problem In general, governments built border walls to keep out people—not animals. The proffered reasons for the walls have included a rise of nationalistic politicians, opposition to refugee movements, and a concern over smuggling. Whether walls work to keep out humans is questionable but there is strong evidence they work to keep out animals. Today, such walls can be found in many parts of the world and animals are paying the price. Walls in Europe Europe has seen a return of border walls over the last several years as political leaders react to the refugee crisis. But while humans have found ways around the walls, animals have been less successful. Unfortunately for European animal populations, these walls can disrupt migration patterns and access to resources. Consider the small band of lynx in the Białowieża Forest traversing the Polish-Belarusian border. These cats have seen their habitat divided since the Polish government built a 115-mile long, 18-foot wall along the border. Cut off from their broader range, the lynx face greater difficulty in finding food and mates threatening individual survival and genetic diversity in the already small population. It is little wonder that a letter signed by over 500 wildlife scientists warned of consequences including “the collapse of the Polish lowland lynx population.” Nor are the lynx alone. The same letter notes the “pan-European importance” of the forest and how it is the “main dispersal route of large mammals.” Beyond the lynx, the border wall threatens species of bison and brown bears. Walls in Asia Asian animals too are threatened by border walls. Fencing along the border between India and Bangladesh has disrupted the movement of Asian elephants in their natural range. Further, walls in Central Asia have blocked camels, bears, snow leopards, and many other animals. In one example, a wall on the border between Kazakhstan and Uzbekistan blocked the migration of antelope between their seasonal habitats. Without intervention that convinced the Kazakh government to open part of the wall, the antelope faced starvation. Walls in the United States The wall on the US-Mexico border has not been particularly effective in restraining human movement but it still manages to threaten animal movement. In addition to the previously mentioned ocelot, the wall also threatens Sonoran pronghorns, Mexican gray wolves, and Peninsular bighorn sheep. As in other border wall cases, the division of these animal populations threatens to reduce already limited genetic diversity and impede their ability to adapt to a changing climate. The wall even threatens habitats before its completion due to the environmental impact of construction. In an effort to expedite construction, the 2005 Real ID Act gave the Department of Homeland Security the authority to waive laws—including environmental laws—that stood in the way of the wall’s completion. The result has been destruction of the physical landscape and threats to environmentally sensitive areas such as the Tijuana Estuary Reserve. Not surprisingly, many wildlife groups are concerned about the impact of the wall on animal populations including one paper signed by nearly 3,000 scientists. Potential Solutions Perhaps the simplest solution would be to just get rid of all the walls, but political reality makes that a tough sell. Furthermore, there are limited situations where walls restricting animal movements may carry benefits, at least to certain groups. Such examples include a fence erected by Botswana that was built to keep out cattle with foot and mouth disease but has the side effect of limiting movements of giraffes, elephants, and zebras. How to work environmental concerns into political reality is always an ongoing conversation but there are some ideas worth considering. Wildlife Gates Creating passageways through the walls is a frequently-proposed solution but has yet to fully realize its promise. On the surface, it seems like the best of both worlds: the wall still serves its intended purpose but allows animals to pass. But reality is murkier. First is a fundamental engineering and behavioral conundrum. If the wall is to serve its purpose, it must be effective in keeping out people. Smaller gates could allow some animals to pass without letting people through but that would only allow small animals to pass. Certainly any gate large enough for a bear is large enough for a person. Second, people are smarter than animals. Not only would people be better at finding the openings, but they would likely be able to solve any challenge that an animal could solve. If the gates were sufficiently guarded, the first two problems may be solvable but that still leaves a third problem: wildlife gates cannot work if they remain closed or unbuilt. In Poland’s case, the government promised 24 wildlife gates that have failed to materialize. Critics call the wildlife gate promise a “soothing agent” and question the idea of animals queuing up for the gate to open. Thus, while wildlife gates may be part of the solution, there must be the will to implement them in an effective way. For now, this remains challenging given opening gates would either increase security costs, decrease the wall’s effectiveness toward humans, or both. Convention for the Protection of Migratory Birds International cooperation can lead to the domestic protection of migratory animals. One of the largest examples of this in the United States is the Convention for the Protection of Migratory Birds signed between the US and Canada. The Convention seeks to preserve migratory birds and save them “from indiscriminate slaughter.” Both countries passed implementing legislation shortly after signing the Convention. Canada did so with the Migratory Birds Convention Act in 1917 and the US followed with the Migratory Bird Treaty Act of 1918. In Canada, the legislation led to the creation of Federal Migratory Bird Sanctuaries and regulations regarding hunting and commercialization. In the US, the law survived a constitutional challenge and currently protects over 1,000 bird species from activities including hunting and commercialization. As US District Court Judge Valerie Caproni noted in a 2020 case, “[i]t is not only a sin to kill a mockingbird, it is also a crime.” There are important lessons to learn from this long-standing convention. Primarily, it provides an example of how international cooperation is possible to address threats to animal species. In fact, the US went on to sign similar conventions with Mexico, Japan, and the Soviet Union. It also shows how international agreements can be functional when properly enforced domestically. But the parallels are not perfect. Migratory birds did not affect the movement of people in and out of the country. Not everyone agreed with the Migratory Bird Treaty Act at the time, but immigration and the border polarize the modern political conversation in a way that migratory birds never did. Overall, the Convention provides a ray of hope through its principles of international cooperation to solve a migratory animal issue but it is not a perfect parallel to today’s situation. Convention on the Conservation of Migratory Species of Wild Animals Bilateral treaties such as the Convention for the Protection of Migratory Birds are a good first step, but addressing the issue of animals and walls around the world may require intergovernmental action at the United Nations level. Fortunately, there is already a framework in the Convention on the Conservation of Migratory Species of Wild Animals. Among the Convention’s fundamental principles is that “[t]he Parties acknowledge the need to take action to avoid any migratory species becoming endangered.” The Convention further acknowledges that the Range States shall endeavor “to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species.” Thus, there is a recognition by the 133 Parties to the Convention that there is a need to mitigate obstacles affecting animal species. But like many international agreements, this Convention is only as powerful as the will to implement and enforce it. Given the previously discussed problems with animals and border walls, it seems that much of the Convention’s goals remain to be realized. Thus, it remains up to activists, experts, and political actors to achieve these goals. They can point to the Convention as a source of authority - even if it is not a panacea for the problem. Conclusion Governments may build walls to affect human movement but they have the (usually) unintended effect of restricting animal movement. For species with small populations, these restrictions reduce chances of mating and limit genetic diversity. And for migratory species it can mean being cut off from seasonal habitats. There are solutions that could mitigate the problem—what is needed is the political will.