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By: Luna Martinez Gomez On April 14, 1912, the RMS Titanic collided with an iceberg. Most of us are familiar with the tragic story of the Titanic shipwreck, dramatized by Leo and Kate into a story of unrealized love and sunken diamonds. However, few people are aware of the challenges that international lawyers faced 104 years ago over litigation concerning the ship's sinking. Who could recover for the loss of personal property, cargo, human life, and the ship itself? These questions were riddled with difficulties. The vessel was owned by a British company but sank in international waters on its way to New York. Further, those aboard her maiden journey hailed from all over the world. Could the U.S. apply its liability laws? Could the case be tried before United States courts? The iceberg that triggered Titanic’s descent into the annals of history contributed to complicating the case. A robust body of jurisprudence existed to deal with conflicting international laws in response to a collision at high seas between two ships. Yet, it was unclear whether the law of the [ship's] flag should also apply to the loss of a vessel by striking a foreign object. The U.S. Supreme Court ruled that the law of the flag determined whether a cause of action existed against a shipowner, but the law of the country in which the action was brought (lex fori) determined if and to what extent the shipowner may limit liability. This resulted in a bewildering puzzle of hypotheticals. What if an action for wrongful death was limited to one amount by the law of the forum, and to a different amount by the lex loci? What if the vessel belonged to a state that allowed a right of action for a cause not recognized by U.S. maritime laws? The above is just one example of the conflicts of law that countries face when responding to maritime misfortunes. These issues are further highlighted by the universal interest in protecting human life in the high seas, ensuring the integrity of mercantile relations, and allowing countries to assert their autonomy and sovereignty over their property. Titanic’s sinking a century ago is but one cautionary tale of the way in which fragmented legislation often leads to frictions in the field of international law.

By Stephen Dockery Widely divergent views of data privacy continue to be a thorn in the side of American-European relations. And until that gap narrows, there is unlikely to be a calm in the legal challenges that are roiling the international business community. Most lately in the case United States v. Microsoft Corp, seen before the U.S. Supreme Court at the end of February. The U.S. tech company has resisted turning over access to customer data stored in foreign jurisdictions pursuant to the Stored Communications Act (SCA), on the grounds that the data handover would put the business afoul of Irish government data privacy regulations. Following a favorable ruling in the Second Circuit, the case was argued before the Supreme Court on February 27. The argument focused on the nature of the statute, the types of foreign contacts involved and whether the government was trying to compel disclosure of information by warrant or subpoena. Issues raised by the justices included how foreign data storage could be used to evade U.S. enforcers and whether the disclosures could be made voluntarily. Justice Breyer focused on the reasonable interpretation of the SCA and how sovereignty and comity issues with foreign powers could be handled under existing judicial doctrines. His questions point toward a long-running crisis of confidence between Europe and the U.S. which underlie the recent spike of data privacy litigation in American and European Courts. The spark that ignited the data conflict goes back to 2013 when American data surveillance programs such as PRISM, came to light after leaks from former NSA contractor Edward Snowden. The reports led the Court of Justice of the European Union, the highest court in the EU, to toss out the data transfer framework that had been used to govern information handling by companies doing business between the two continents. Companies had been able to self-certify data privacy standards under the agreement known as Safe Harbor. After extensive negotiations involving the U.S. Department of Commerce and their European counterparts, the parties put together a new privacy agreement called Privacy Shield, which was announced in 2016. That agreement has been continually challenged in Europe on claims that the new agreement still does not meet European privacy standards because of the existence of the American spying programs. A recent challenge to the regime was tossed out on standing grounds. A challenge to standard contractual clauses, that have been used by companies to try to meet European data requirements was recently referred to the European High court. The data storage and data transfer space remain very much in flux, and at the heart of all this litigation is a fundamental difference of opinion on the protections afforded to an individual’s privacy. Europe has a powerful pro-privacy tradition that has been memorialized in such documents as the Charter of Fundamental Rights of the European Union.  American privacy protections have been arguably less formalized and there have been contrary actions such as the Foreign Intelligence Surveillance Act which directly empower data collection. American intelligence agencies can still scoop up massive amounts of data at home and abroad, which is something that gives country data protection authorities and privacy advocates pause. European concerns range from acceptable remedies for privacy violations to assurances of limits to American foreign data dragnets, issues that trade negotiators cannot address in full. There is a dissonance of privacy rights and procedure between Europe and America that remains unaddressed since the 2013 revelations came to light. So long as remedies and assurances remain elusive, legal challenges and uncertainty will likely continue to disturb the transcontinental marketplace. The CLOUD Act, which parties alluded to during the Microsoft case oral argument, is a pending bill that could meaningfully alter some of the issues between the US and EU on data privacy in the enforcement sphere. It would allow American prosecutors easier access to information held abroad and establish a procedure for foreign enforcers to access data held by American firms. The bill has been hailed by some legal experts as fixing the enforcement problem and panned by the Electronic Frontier Foundation as “a dangerous expansion of police snooping.” Even if the CLOUD Act passes a larger reconciliation, to put privacy authorities at ease and provide definitive remedies for European individuals harmed by privacy violations, may be needed to calm the data privacy waters.

On March 14 1975, representatives of some eighty-one States along with ten intergovernmental organizations and agencies gathered in Vienna and opened the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character . Their intention was to create a uniform set of standards governing the diplomatic privileges and immunities of representatives of international organizations to states and state representatives to international organizations. The Convention to which 41 states became a party, however, failed to enter into force. Hence leaving the matter to be resolved through a myriad of complex international and domestic rules. While with its own applicable conventions, the UN remains an exception to this ambiguity, due to this failed attempt many international organizations still perform in a complex legal framework primarily bound to their host states despite fulfilling neutral diplomatic functions up until today.

By Dru Spiller Voting is a central part of civic duty and a basic element of democracy. Despite its importance, this right is often denied to individuals who have been convicted of a crime. In a 2004 case, Hirst v. United Kingdom, the European Court of Human Rights ruled that a blanket ban on prisoner voting was unlawful and a breach of prisoners’ human rights. The court held that “‘[P]risoners in general continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save for the right to liberty […]’, and that ‘[a]ny restrictions on these rights must be justified.” The court introduced a proportionality concept to the case. The European Court of Justice elaborated on this concept in the 2015 case of Thierry Delvigne v. Commune de Lesparre Medoc and Prefet de la Gironde, declaring that EU member states may use a proportionality test to “take into account the nature and gravity of the criminal offense committed and the duration of the penalty.” In 2016 Penal Reform International published a brief from eight international law firms reviewing the global extent of disenfranchisement of detained persons. They found that in 45% of the jurisdictions studied imprisonment is automatically followed by disenfranchisement. They also found that in 55% of the jurisdictions prisoners who did have the right to vote were often still facing restrictions and/or conditions, usually based on the severity or type of offense and/or length of the sentence imposed. Prisoners may vote in countries like Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. Post prison time, a majority of the countries reinstate prisoners right to vote. It is only a minority of countries whose disenfranchisement is not automatically reinstated post-release: Belgium, Luxembourg, Kuwait, Poland, and the United States. The United States locks up more people, per capita, than any other nation in the world. This is especially concerning given that the majority of states restrict or heavily condition prisoner’s rights and access to voting. Out of fifty, only Maine and Vermont allow prisoners to vote while incarcerated. Once released back into the general population, thirty-five states further exclude ex-convicts on parole and another thirty-one states exclude persons on probation. Prisoners convicted of specified offenses may vote after a waiting period in eight states and four states deny the right to vote to anyone with a felony conviction. In 2016 an estimated 2.5% of the voting age population, excluding Washington, D.C., could not vote do a felony conviction. Felon disenfranchisement disproportionately affects people of color and lower income communities. Over 7.4% of the total adult African American population is disenfranchised in the US. Some states even have rates rising above 20%. These high rates are partly due to discriminatory effects of federal and state legislation such as mandatory minimum sentencing and the bail system. It is also an effect of a criminal justice system that is historically tied to oppression and discrimination. Disenfranchisement laws were brought to America by European colonists from a time when criminals were banished and ostracized. These laws became popular after the passage of the Fifteenth Amendment opened up the vote to newly freed African Americans, as a way to employ race-neutral means to exclude blacks from voting. A 2013 report from the OHCHR stated that “The felony disenfranchisement laws, policies and practices of the United States are inconsistent with general principles of international human rights law, norms and standards. These practices are not only in direct violation of U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR) [Article 25] but they also contravene the principles as established by the Universal Declaration of Human Rights (UDHR) [Article 21] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [Article 5], and the American Declaration of the Rights and Duties of Man (ADRDM) [Article XX].” As part of their recommendations, the Committee has also called for the restoration of voting rights to people released from prison and raised concerns that the practice of denying voting rights to people with felony convictions disproportionately impacts minority groups and are counterproductive to efforts to reintegrate those exiting prison. Disenfranchisement laws do not serve any purpose in nations that seek to reintegrate and re-educate citizens convicted of crimes rather than to ostracize them. These laws strip the presently and formerly incarcerated of a means to voice their opinion and enact legislative change that could benefit their communities. The stripping of these rights is especially concerning as it disproportionately affects communities which have historically been discriminated against in other ways.

By Julia Jacovides On this day in 1989, Iran broke off diplomatic relations with Britain for its refusal to denounce Salman Rushdie and his novel, The Satanic Verses. On February 14, Ayatollah Ruhollah Khomeini had issued a fatwa calling for Rushdie’s death and, though Britain admitted the book was insulting, it did not support the fatwa. The Satanic Verses follows the lives of two Indian expatriates, both Muslim, living in England and struggling to connect with their faith. Critics accused Rushdie of “blaspheming Islam.” From the Archbishop of Canterbury to the foreign secretary, the British establishment similarly denounced the book. Even Jimmy Carter referred to it as an “insult to the sacred beliefs of” Islam. Rushdie’s supporters maintained that Rushdie’s freedom of expression allowed him to pen any type of novel, including this one. “A novel is an essentially playful undertaking,” one said, “and this is an exceedingly playful novel.” With the help of a small circle of literary friends, Rushdie went into hiding. He has lived under police supervision since then. Bookstores across the United States and the United Kingdom, where Rushdie lived at the time of publication, continued to sell the book despite periodic attacks and occasional bomb scares. Riots took place in Islamabad, Kashmir, and New Delhi; there were deaths at each. Two bookstores in Berkeley, California were firebombed; each carried The Satanic Verses. Britain had only reopened its embassy in Tehran a year earlier, nearly ten years after the 1979 Iranian Revolution. It took another ten years for the two countries to formally reestablish full diplomatic relations. In 1998, the Iranian government abandoned its support of the fatwa as part of an effort to normalize relations with the United Kingdom. In February 2016, Iranian news outlets raised $600,000 “to add to the fatwa” on Rushdie.

By Sam Mottahedan Education has been formally recognized as a human right since the 1948 Universal Declaration of Human Rights. Article 13(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) provides ‘the right of everyone to education’. Article 2 of Protocol 1 of the European Convention of Human Rights (ECHR) similarly provides that ‘no person shall be denied the right to education’. While all of these treaties imply that the right to education applies to all persons, including, therefore, to all persons in prisons, the right of prisoners to education remains problematic in both European human rights law and practice. A Limited Right: ECHR Jurisprudence on Prison Education Rather than interpret Article 2 of Protocol 1 as imposing an obligation on the state to make available a particular type of education, the European Court of Human Rights (ECtHR) in Velyo in Velev v. Bulgaria constructs the Article as guaranteeing only access to ‘existing’ educational facilities, including in prisons where there are none (para.31).  In contrast, the Committee on Economic, Social and Cultural Rights (CESCR) considers that the right to education consists, inter alia, of the ‘availability of functioning educational institutions’ that are ‘accessible to everyone, without discrimination’. By focusing exclusively on accessibility, the ECtHR fails to provide genuine substance to the right to education, with particular detriment to the right to education of prisoners. A parallel could be made with Golder v UK, where the ECtHR recognized that the right to a fair trial implied a right to a court. In Golder, the Court understood that if Article 6 concerned exclusively the ‘conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of the text, do away with its courts’ (para 35). In a similar vein, would the ECtHR allow states to wholly ‘do away’ with educational facilities? In the context of primary, secondary and higher education, the question may seem hypothetical, both because of the existence of other human rights protections and due to political pressures for the availability and fair distribution of public services. However, as the Special Rapporteur to the right of education, Vernor Muñoz has noted, the major barrier to the education of prisoners is public opinion, ‘often indifferent and ignorant of detention’. ‘These [public] attitudes are fuelled by an often equally ill-informed and ill-advised media which […] focuses almost exclusively on unrepresentative individual violent events’. The ‘ready willingness of politicians to reflect these fears in penal policy’ results in a general reluctance to legislate prisoners’ right to education, and facilitates ‘an environment inherently hostile to its liberating potential’. Conclusion – Proposing a new legal framework The ECtHR should adopt three interrelated approaches towards the right to prison education. Firstly, the court should consider, as it did in the context of health-related rights in Kudla v Poland, that, ‘given the practical demands of imprisonment’ (para 94), education must be secured in prisons. In this regard, the court would find support from a range of European initiatives that have emphasized the importance of prison education in combating the negative and deskilling effects of imprisonment and in ensuring prisoners’ reintegration. A key document is the 1990 Recommendation of the Council of Europe on Education in Prison, the preamble to which considers that education in prisons helps to humanize prisoners and facilitates their reintegration. Secondly, the ECtHR must address the question of what can be considered as an acceptable level of educational facilities in prisons? Although neither the CESCR nor the ICESCR provides guidance on what availability means in the context of prison education, such guidance can be found, in the UN Mandela Rules as well the European Prison Rules, which recommends, inter alia, education that meets ‘individual needs’ and is integrated with the educational system of the country. Lastly, the ECtHR should consider whether prison education is itself a human right. In Vinter v UK, the Court held that a prospect of release for detainees is necessary because ‘human dignity’ requires that there must be a chance for a prisoner to move towards rehabilitation. The ECtHR's recognition of ‘human dignity’ should similarly be engaged in the context of prison education. In his report on prison education, Muñoz observed that as ‘human dignity […] implies respect for the individual, in his actuality and also his potential’, education which ‘is uniquely and pre-eminently concerned with learning, fulfilling potential and development’ should be a fundamental concern in prisons. Human dignity is a disputed concept. However, where prisoners are provided with no education to access, along with no agency to address its absence, can it actually be argued that the human dignity of prisoners is being respected?

By Dru Spiller On this day in 1922 Great Britain declared limited independence for Egypt following the conclusion of a campaign for independence that began in 1919. The UK government issued a declaration called the Unilateral Declaration of Egyptian Independence that unilaterally ended its protectorate over Egypt (in place since 1914) and granted independence save for four  reserved areas: foreign relations, communications, military, and Anglo-Egyptian Sudan. The Egyptian revolution started in 1919 and was fought against the British occupation of Egypt and Sudan. Nationalist agitation had been mostly concentrated on the population of the elite but became more widespread as Britain continued to drag Egypt further into their fight in World War I. The British conscripted over 1.5 million Egyptians into the Labour Corps and requisitioned large swaths of property and animals for the use of the army. After the War armistice in November a delegation of Egyptian nationalist activists led by Saad Zaghloul initiated a meeting with the British to ask for the end of the British protectorate. Fearing the massive popular support for both Saad Zaghlul and the Wafd Party, the British government ordered the exile of revolutionary Egyptian Nationalist leader Saad Zaghlul and other members of the Wafd Party (Egyptian Delegation Party). Throughout the end of March 1919 grassroots disobedience went on in protest of the exiles and ended with at least 800 Egyptians dead and numerous villages burned down. In December of 1919 the British government sent the “Milner Mission” (named after Alfred Milner) to conduct an inquiry about the causes of the revolt and make a recommendation about the political future of the country. In February of 1921 the commission report recommended that the protectorate status be abandoned leading to the eventual unilateral declaration on February 28 1922.

By Edward Richter The United States (US) is on a collision course with China over the South China Sea. US attempts to enforce international law are weakened by erosion of the status of international law caused by the US, Russia, and China over the last few decades. The US was the first of these states to reject the binding power of international law when it rejected a ruling of the International Court of Justice (ICJ) in 1986. The US utilized its position as a permanent member of the United Nations (UN) Security Council to prevent the ICJ from penalizing it for supporting the Contra rebellion against the ruling Sandinista government in Nicaragua. This kicked off the long trend of the to cooperate with international legal bodies, flouting international norms, and refusing to recognize the jurisdiction of a number of international courts and tribunals. Notably, post-Nicaragua the US has refused to take part in the ICJ, the International Criminal Court, and denied ratifying the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The latter choice now proves costly, as the US engages to enforce international law in the South China Sea. This attempt reveals an apparent double standard, as the US refuses to ratify the very convention it now seeks to enforce. In 2013 Russia arrested a Greenpeace ship flagged for the Netherlands which was protesting a Russian oil platform in the Barents Sea. Following the US example of avoiding international courts, Russia refused to accept the Dutch request to release the vessel and crew under Article 292 of UNCLOS in exchange for a security bond. In response the Netherlands filed petitions with both the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA). Their action sought the ship’s release and money damages for violating UNCLOS, which both Russia and the Netherlands have signed. However, Russia rejected the tribunal’s jurisdiction and refused to appear before it when requested. The tribunal ruled that it did have jurisdiction and convicted Russia in absentia, but the country refused to pay damages or accept jurisdiction. China has since followed suit in rejecting the authority of UNCLOS. This came after various Southeast Asian countries and the US complained about China’s expansive territorial claims and aggressive behavior in the South China Sea. The claims in question concern the now famous Nine-Dash Line, which encompasses much of the South China Sea. Whether China asserts sovereignty over the entire oceanic expanse or just the land within the area is unclear, as is how much of China’s actions are simple negotiating tactics, but its creation of artificial islands and harassment of Philippine and Vietnamese fisherman are a source of concern to other nations in the region. Due to these concerns, in 2013 the Philippines took action and brought a case against China before the PCA for maritime delimitation. The Philippines argued that China’s territorial claims to the South China Sea and construction of artificial islands violated the terms of the UNCLOS, which both China and the Philippines have signed. The tribunal determined that it did have jurisdiction over the case but China condemned and refused to recognize the ruling, resembling the practice of the US and Russia. Accordingly, when the tribunal struck down China’s claim to sovereignty over the entire South China Sea, the Chinese Foreign Ministry issued a statement rejecting the verdict, stating that it “does not accept or recognize it” and the award is “invalid and has no binding force.” Instead, China continued with the status quo while concluding a generous series of trade deals with the Philippines in seeking to exploit the growing gap between Filipino President Rodrigo Duterte and the US, thereby rendering the judgement of the tribunal entirely moot. Following the US and Russia’s example, China has continued to flout international law with total impunity in the South China Sea. China’s position as a permanent member of the UN security council insulates it from foreign legal pressure, its economic might protects it from sanctions, and its military means ensure that no other sovereign can force it to abide by norms and rules of international law. This in turn prevents any amicable means of resolution in the South China Sea, as China simply ignores any UNCLOS ruling that does not favor it. Similarly, the US’s own track record of non-compliance with the rulings of international courts and refusal to ratify UNCLOS in the first place limits its ability to use international law to resolve the growing conflict. Accordingly, the failure of both parties to resolve this matter using international law may escalate the tensions between the US and China in the region. This tension can be readily observed in the current undertakings of both the US and China. China continues building islands to serve as military bases from which it can project the military power needed to secure its claims and grant it de-facto control over the territory. The US meanwhile authorizes ever more aggressive Freedom of Navigation Exercises (FONOPs), wherein US navy vessels intentionally sail through the disputed waters as a means of signifying lack of Chinese control and sovereignty over the disputed region. This raises tensions in the region leading to boat collisions, harassment of naval vessels, and even Chinese seizure of a US drone. Thus, due to the breakdown in international law and the escalating tension in the region, two of the world’s mightiest nations find themselves on a collision course with no clear resolution to the growing crisis.

By Stephen Dockery On February 22, 1918, Montana’s sedition act—which criminalized speaking out against the government and its international activities in World War I—became law. Responding to a surge of anti-German and patriotic fervor, the law severely limited speech and assembly rights in the state. The Montana statute would be used as a blueprint for the federal Sedition Act of 1918 which likewise prohibited criticism of the country, its armed forces, and its flag. The Montana law was used to convict 79 people between 1918 and 1919. The convicted were mostly rural blue-collar workers, many of whom had immigrated to the country from Germany or Austria. Montana residents convicted for minor criticisms of American policy received an average of 19 months in prison and many were fined up to $20,000, about $354,000 in today’s dollars. Those convicted under the law were pardoned in 2006 by then-Governor Brian Schweitzer. “I'm going to say what Gov. Sam Stewart should have said: I'm sorry, forgive me and God bless America, because we can criticize our government," Schweitzer told The New York Times. The sedition law is a stark reminder of the way paroxysms of nationalist fervor, often stoked by international conflict, can lead to gross domestic encroachment on civil liberties.

Guest Contributor: Jenny Poon  Ph.D. Candidate; Faculty of Law, University of Western Ontario. Introduction Based on United Nations High Commissioner for Refugees (UNHCR) official figures, there are currently 65.6 million forcibly displaced people worldwide as of 2016. According to the Norwegian Refugee Council Internal Displacement Monitoring Centre in its Global Report, since 2016, there were 31.1 million new internal displacements by conflict, violence and disasters – the equivalent of one person forced to flee every second. These statistics show the ongoing importance to provide and enhance protection for the internally displaced. A neglected group of individuals Despite the ongoing need for protecting Internally Displaced Persons (IDPs), analyses of non-refoulement are often focused solely on international protection. A critical piece of the puzzle has been neglected by academic literature: namely, what happens to IDPs who are forcibly displaced but not crossing international borders? Since non-refoulement applies equally to both asylum seekers and refugees, can a case be made that IDPs also benefit from non-refoulement protection? Another question worth asking is: What is the distinction, if any, between an IDP and asylum seeker? An asylum seeker is defined as someone who is in the process of seeking asylum or protection but whose claim has not yet been formally assessed. An IDP is defined, under Article 2 of the United Nations Guiding Principles on Internal Displacement (Guiding Principles) as ‘persons or groups of persons who have been forced or obliged to flee or leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border’. As one can see, an IDP may seek asylum from situations aforementioned, but they are legally distinct from refugees because they have not crossed an international border. Although the UNHCR does not have a specific mandate to protect IDPs, it has been authorized by the UNGA ‘to be involved operationally under certain circumstances in enhancing protection and providing humanitarian assistance to internally displaced persons through special operations’. A gap within existing law Current legal protection for IDPs is scarce. IDPs are generally protected by general international human rights law such as Article 12 of the International Covenant on Civil and Political Rights, and Article 49 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War in international humanitarian law. Since the situation of IDPs is specific, without a proper IDP-tailored framework, it is difficult to enhance protection for this group of individuals who are otherwise not eligible for refugee protection because they have not crossed an international border. Patchwork legislation as a result of sewing together different branches of international law leave gaping holes for IDPs. This concern is affirmed by the Norwegian Refugee Council in its Opinion Series on IDPs. The Guiding Principles applicable to IDPs is a soft law instrument, so that it has no binding force under international law. Non-refoulement protection is therefore vital in safeguarding the fundamental rights of IDPs. The principle of non-refoulement is recognized under Art 15(d) of the Guiding Principles, which states that: ‘Internally displaced persons have: (d) The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk’. The link between non-refoulement and IDPs The link between non-refoulement and IDPs may be illustrated some examples. The Russian annexation of Crimea in early 2014. Human rights organizations such as the Human Rights Watch has expressed concern over Russia’s actions in occupied Crimea. In the situation of an IDP fleeing from Russian occupation of Crimea for fear of persecution from Russian forces, he or she may not be entitled to the same protection as refugees, since the IDP is not crossing an international border.  The IDP is especially vulnerable where the State of Ukraine is unable or unwilling to offer protection. Here, the question of internal flight alternative (as in the case for determining refugee status) does not exist or may not be applicable, given the IDP is unable to gain protection from the State of Ukraine elsewhere. Since IDPs are not within the core mandate of the UNHCR, no protection or humanitarian assistance from international agencies is available. Further, given the complexity of the situation between Russia and Ukraine, the international community may be reluctant to intervene – this is despite the United Nation’s obligation to prevent human rights violations such as non-refoulement from taking place pursuant to Article 55 of the Charter of the United Nations. The European Union, for instance, has issued a detailed study on enhancing the national legal framework in Ukraine for protecting the human rights of IDPs in 2016, especially to address the massive flows of IDPs from eastern Ukraine as a result of the armed conflict with Russia. The question remains, however, on whether non-refoulement obligations may apply if an individual has not been able to leave Crimea. In that scenario, the IDP cannot be ‘returned’ to Crimea, if he or she never ‘left’. Another situation which warrants discussion is the Syrian IDP problem. According to UNHCR estimates, there are currently 6.5 million people, including 2.8 million children, displaced within Syria, which is the biggest IDP population in the world. If one accepts that non-refoulement would apply in the situation of IDPs, as argued above, IDPs displaced within internal borders of Syria (thus not refugees) but under occupied power of rebel groups or forces should be protected from being sent back to occupied territories within Syria, where they may face threats to their lives or freedom. In practice, this would mean that Syrian IDPs fleeing internally from persecution or situations of generalized violence, would be protected from being sent back to parts of Syria where they fled (such as rebel-occupied territories). There is UNHCR support for the application of non-refoulement to IDPs, in particular in its Handbook for the Protection of Internally Displaced Persons. As the Crimean and Syrian examples show, protection for IDPs requires more attention from the international community. One way of enhancing such protection for IDPs is by recognizing the need to protect IDPs from refoulement to situations where they may face massive violations of human rights, even where they may not be crossing an international border. Concluding Remarks The above served as a brief sketch of the underlying problems around legal protection for IDPs. It has been demonstrated that, despite this gap in the law, the very basic protection for IDPs such as protection from refoulement should be safeguarded. It is the hope that this blog post can raise awareness on the need for enhanced protection for those being forcibly displaced internally.

By Fatma Ezzahra Sassi On February 7, 1992, the Member States of the European Community signed the Maastricht Treaty. This treaty constituted a turning point in the history of European integration: it formally established the European Union and added a political vocation to the European project. Indeed, going beyond the realization of a common market, the Maastricht Treaty aimed to mark “a new stage in the process of creating an ever closer union among the peoples of Europe.” The Treaty established a European Union (EU) based on three pillars: the three European Communities, a Common Foreign and Security Policy, and cooperation in Justice and Home Affairs. It also introduced the concept of European citizenship and set a three-phase scheme for the creation of a single currency, the Euro. The ratification process of the Treaty took longer than expected due to the negative vote in the Danish referendum. Nevertheless, after negotiations, the Treaty finally entered into force in November 1993. Most recently, the United Kingdom voted to leave the EU in a June 2016 referendum, with the so-called Brexit scheduled for March 2019.

By Guest Contributor Maitreyee Dixit As Trump and Kim Jong-Un exchange threats over Twitter, television, and speeches in the UN General Assembly, one cannot help but wonder whether such threats, especially North Korea’s, are legally permissible. Does international law permit threats to use force, especially the likes being exchanged between two States armed with nuclear weapons? Article 2(4) of the United Nations Charter, in fact, prohibits not only the use of force but the threat to use of force, which has been not dealt with as extensively as the use of force itself in scholarship. Even jurisprudence on this subject is sparse, with the International Court of Justice (ICJ) adjudicating upon it only in the Nuclear Weapons advisory opinion and the Nicaragua case. The Permanent Court of Arbitration has held the threat to use of force to be a violation of Article 2(4) of the United Nations Charter in Guyana/Suriname matter. It was held in Nicaragua that the level of armament of a nation is its sovereign prerogative, and in the absence of international obligations regulating the same, cannot constitute a threat under Article 2(4); however, this position was altered in the Nuclear Weapons case, which considered the possibility of such a nuclear armament being a threat, even though in limited sense. The Court laid down- “Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them…Whether this (possession of nuclear weapons) is a ‘threat’ contrary to Article 2, paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defense, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter.” This would entail that the possession of nuclear weapons itself would be a threat falling under the prohibition imposed by Article 2(4) of the Charter, if the use of those weapons is envisaged against the pointers enumerated by the Court. In scholarship, there has been a divergence of opinion with respect to what constitutes a threat of use of force which violates Article 2(4). While scholars like Romana Sadurska define the restriction permissively, considering the threat of use of force to be a better alternative than the actual use of force in diplomatic relations; the others are wary of the risks of such a definition. Amongst the second group, the most cited theorization is that of Brownlie, which was also adopted by the ICJ in the Nuclear Weapons opinion. Brownlie defines an illegal threat to use of force as “an express or implied promise by a State of a resort to force conditional on non-acceptance of certain demands of that State”. He further asserts that there exists symmetry between the legality of the threat of use of force and the actual use of force. In essence, if the use of force in a circumstance is considered unlawful, then the threat of use of such force cannot be considered lawful. Thus, the two exceptions to the prohibition of threats to use of force will also be self-defense and force sanctioned by the United Nations Security Council (UNSC), corresponding to the exceptions of the actual use of force. Authors like Roscini theorize these threats differently, inasmuch as they do not consider demands made by the threatening State necessary for the threats to be illegal. Hence, even if there exists no specific demand made of the targeted state, the threat may still reach the threshold of an illegal threat. Roscini uses the ‘will’ of the threatening state as the defining factor of the illegal threat, meaning that the actual use of force is based upon the ‘will’ of the responsible State. Any threat that fulfills that requirement then becomes an illegal threat, regardless of whether force follows it. Furthermore, according to Roscini, it is not required to prove that one particular statement, in isolation, amounts to a threat of use of force to invoke Article 2(4). To the contrary, the relationship between the concerned states and the context play a key role in determining whether such a ‘threat’ exists. An example of this is the Corfu Channel Case, in which UK’s minesweeping was not seen as a ‘threat’ of use of force, in the specific context of a previous firing by Albania. It is in this framework that the threats of North Korea (NK) have to be analyzed as a violation of Article 2(4). 1. The 2013 Threats Threats and hostile communication being exchanged between the U.S. and NK is no recent development, deteriorating further with NK testing nuclear weapons under King Jong-Il and the acceleration of its nuclear program. NK had threatened the U.S. with nuclear strikes as far back as 2013, which was triggered by the latter’s practice-bombing exercise over the Korean peninsula in the wake of escalating tensions between South Korea (SK) and NK. There were several threats released by NK, followed by the official release of a picture of Kim Jong-Un “discussing” with his generals “plans to strike the mainland U.S.”, Guam, and South Korea, succeeded by statements declaring the ‘readiness’ of its missiles to strike ‘anytime’. It is pertinent to note that all this was taking place in violation of numerous UN sanctions that prohibited the launch of ballistic missiles by NK. Practice drills with drones, cutting off of military hotlines, threats of a pre-emptive nuclear strike characterized NK’s interactions with the U.S. in 2013, similar to the 2017 exchange. However, there is one crucial difference: NK’s increased capability to actually use the threatened nuclear force in the present. In 2013, there was an uncertainty regarding NK’s capability to build and launch long-range Intercontinental Ballistic Missiles (ICBMs) which could carry nuclear warheads. However, with the number of tests conducted by North Korea this year, accompanied by actual displays of such capacity, such a conclusion can no longer be drawn as comfortably. 2. Response to UNSC Sanctions in August 2017. The 2017 exchanges have been more hostile and worrisome, with Trump using vitriol to stir tensions further. The adoption of a fresh round of UN sanctions against NK in August, with the U.S. at the helm, triggered a strong reaction from NK. Calling these sanctions a violation of its “sovereignty”, it threatened the U.S. with retaliatory ‘righteous’ action, to which Trump responded with his infamous ‘fire and fury’ remark. In retaliation, NK released statements threatening to attack Guam with missiles, which were supplemented by NK’s official statements regarding the concretization of a military plan to strike Guam. 3. Missile Launches Over Japan NK’s successive launches of Ballistic Missiles over Japan marked a turning point in NK-U.S relations, as Japan was cooperating with the U.S. over NK’s nuclear policy and is its ally. Apart from this, the missiles also threatened the U.S. territory in a more direct way: the distance the second missile covered was comparable to that between NK and Guam, and in both cases, the Missiles were launched in Guam’s direction 4. Testing of the Hydrogen Bomb Between the two launches, NK tested a hydrogen bomb in early September (its sixth nuclear test) which resulted in a 6.3 magnitude tremor. This bomb was said to be eight times more powerful than the bombs dropped by the U.S. on Hiroshima and Nagasaki in the Second World War. Accompanying the ‘test’ was a picture of Kim Jong-Un inspecting a thermonuclear bomb, which led to a detailed reconsideration of NK’s nuclear weapon manufacturing capabilities. This act was firmly condemned by several states across the globe, including Russia and China as it posed a considerable threat to the nuclear non-proliferation agenda. The conduct of NK necessitated successive UN meetings, which resulted in new sanctions being slapped on NK. NK, in response, threatened to sink Japan and reduce the US to "ashes and darkness", which was succeeded by the second Missile launch over Hokkaido. 5. Responses to Trump’s speech at the United Nations General Assembly Trump’s speech in the UNGA, triggered an ‘unprecedented’ response from NK, with Kim Jong-Un himself threatening Trump and U.S. (unlike the usual method: release of reports by the NK agencies), in which he vowed to “surely and definitely tame the mentally deranged U.S. dotard (Trump) with fire.” NK then threatened to test a hydrogen bomb over the Pacific Ocean in retaliation to Trump’s speech, which would directly affect the U.S. and Japan. Ri Yong-Ho, NK’s Foreign Minister then gave his speech at the UNGA, claiming that “firing its rockets at the US mainland was inevitable” in the wake of Trump’s responses. 6. Response to Trump’s Tweet on 24th September Trump responded to Yong-Ho’s speech via Twitter, stating that they (the regime) “won’t be around much longer”. Yong-Ho construed this as a ‘declaration of war’ by the U.S. on NK, which prompted ‘all options’ to be put on the table. The U.S. has called this “absurd”, and has maintained that their aim is to accomplish peaceful denuclearization of the Korean Peninsula, and not ‘declare war’; which in spite of Trump’s bellicose language, is evident from the U.S.’ continuous efforts at the UNSC. Yong-Ho further claimed that the ‘declaration’ allowed NK to ‘make countermeasures’ which would include shooting down U.S. strategic bombers which are not even in its airspace. It has, in fact, boosted defenses on its east coast to achieve that objective. The White House has maintained that such an act will contravene international law. Analysis All these facts, when taken cumulatively, fulfill the requirements of an illegal threat according to Brownlie’s and Roscini’s definitions. NK has, through its conduct, promised to use force on the U.S. and its allies, demanding the U.S. and the international community cease its non-proliferation efforts in the Korean region. The threat also fulfills the ‘will’ criterion laid down by Roscini, since the use of nuclear force depends solely on the will of Kim Jong-Un, which has been demonstrated repeatedly. Employing the opinion in the Nuclear Weapons case, it may be argued that nuclear armament by NK itself may amount to a threat under Article 2(4), as it is not in doubt that if NK does use force, which it has threatened to do against the U.S., Guam, Japan and South Korea, it will violate their territorial integrity. Use of nuclear force can also arguably violate the purpose of the U.N., which is maintaining global peace and security. Conclusion The analysis of NK’s threats in the provided framework makes it difficult to deny that that its threats contravene Article 2(4). North Korea’s statements and actions, like conducting missile launches over the territory of Japan, testing hydrogen bombs etcetera, all in violation of UNSC sanctions have the effect of cumulatively fulfilling the criteria laid down for the determination of illegal threats. One counter argument, however, is crucial to be addressed, albeit in brief. The exchange between NK and Trump has been bilateral, with both sides using fiery rhetoric; in that scenario, shouldn’t NK’s remarks have the benefit of being seen as self defense? It is indeed possible to envisage counter threats as a measure of self defense when faced with threats of use of force. However, such application cannot be seen as a simple exercise and will largely depend on the choice of a reference point. For example, in the current situation, North Korea’s threats and conduct in and prior to 2013, in the absence of threats by the U.S., make it difficult for them to claim self defense in 2017. The U.S. can claim self defense more effectively in that context. However, keeping in mind Trump’s equally bellicose rhetoric (the threat to “completely destroy NK”) the extent of this permissibility is yet to be examined. In addition to this, it can be argued that U.S.’ threats have always tried to ensure that NK complies with UNSC sanctions and hence are legal. This too, however, is not rid of complexities. On one hand, U.S.’ threats can be seen to be compatible with the purpose of the United Nations (maintaining global peace and security through nuclear disarmament) and its recourse to UNSC instead of other methods does correspond with peaceful settlement of disputes to a reasonable degree; but on the other hand, legality requires that the very UNSC sanction allows for use of force to ensure compliance for the threats to be legal- like in the case of the Iraqi invasion of Kuwait- which is absent here. It can be argued that this is a narrow construction of the exception, but a broadening of such an exception has to be done cautiously.