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By Guest Contributors Harsh Mahaseth & Nirupan Karki Harsh Mahaseth and Nirupan Karki are currently pursuing their degree in law from the National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad, India. The longstanding Israel-Palestine conflict dates back to 1967, when Israel captured West Bank and the Gaza Strip. As a result, more than 700,000 Palestinian Arabs were forced out of their settlements and made into refugees. Israeli authorities, since then, have taken thousands of acres of Palestinian land for their settlement and have facilitated the transfer of its citizens to the West Bank- a territory of Palestine. It is now home to approximately 580,000 Israeli people who have settled there with aid from their government. Such an action is similar to one of colonization and is contrary to the Fourth Agreement of the Geneva Convention. While the settlers are provided with adequate infrastructures, subsidies, protection and rights, these benefits are not extended to Palestinians living there. They are instead subjected to oppression, discrimination and severe violations of Human Rights. Discriminatory laws have particularly made it difficult for Palestinians to obtain building permits in West Bank and East Jerusalem, which are exclusively under Israeli control. This has led Palestinians to give up on land that is rightfully theirs. Furthermore, Israel revoked residency of Palestinian citizens residing on the West Bank citing arbitrary security concerns. As Human Rights Watch rightly puts it, this is a “repression that extends far beyond any security rationale. On April 1, 2015, Palestine became the 123rd member to ratify the Rome Statute and became a member of the International Criminal Court (ICC). The reason behind this ratification was to threaten to bring charges against Israeli officials who had committed severe crimes in the Occupied Territories. This decision has met widespread approval, with the European Parliament describing it as a “historic moment in the Palestinian people’s struggle for justice, freedom and peace.” Both international law and the public opinion has been seen to side strongly with the Palestinians, but Israel shows no signs of stepping back. Palestine in the ICC The Office of the Prosecutor of the ICC began its preliminary examination in Palestine in January 2015. During this phase the prosecutor determines whether the certain criteria have been met to pursue a formal investigation. In September, 2017, four Palestinian human rights groups submitted a 700 page communication to the ICC alleging Israeli officials of committing war crimes and crimes against humanity in West Bank and East Jerusalem.  According to these human rights groups, this step is “necessary step to ending the culture of impunity that has long prevailed in regard to Israeli crimes and to hold high-level political and military officials accountable". This communication is said to hold evidence of the war crimes which could be considered strong evidence to launch a full investigation. This is not the first time an organization has requested the ICC to open up a formal investigation. In 2016, Human Rights Watch had requested the ICC to open a formal probe drawing on the “unlawful attack” carried out by both sides during the Israeli war on Gaza and the continuous expansion of illegal settlements. In light of this report being submitted there are chances that this process is taken further. Implications of the ICC’s Decision According to the mandate of the ICC, Individuals can be tried and be held accountable for committing serious crimes that are of concern to the international community. The crimes should fall under any of the four criteria, namely genocide, war crimes, crimes against humanity, and the crime of aggression. In its mandate, the ICC further states that deportation or forcible transfer of population comes under the ambit of “crimes against humanity”. Thus, facilitating illegal settlements of Israelis in Palestinian territories and forcing conditions where Palestinians have to move out of their own houses does constitute as a serious crime under the ICC’s mandate and gives them jurisdiction to try those involved. Considering that Israel is not a party to the Rome Statute, it may not agree to the decision of the ICC; however, its nationals can be tried by the ICC for crimes committed on Palestinian territory. Although enforceability of such a judgment lies solely in the hands of individual states and their stance on international law, failure to comply will be met with repercussions from the international community. Therefore, it would create a favorable outcome for the Palestinians as it would cast Israel in an unfavorable light in relation to the United Nations, international law, and public opinion, etching Israel’s history. Considering Israel’s volatile relations with nations of the Middle East and most of the P5 countries, as of late, disregarding the ICC judgment is not advised. The Way forward Lately, many have been wondering if the recent considerations of some African countries to withdraw from the Rome Statute will generate a domino effect and result in the end of the ICC. During the near two decades of the operation of the ICC, it has been very reluctant to be proactive except for in Africa, and that too has seen an immense backlash by the African nations as being unfairly targeted. The ICC has been reluctant to stir up political opposition in the West, which is bound to happen if a full investigation is opened up by Palestine. With the ICC now beginning to take on powerful nations such as the United Kingdom for its actions in Iraq, or Russia for its actions in Georgia, or Israel for its actions in Palestine, there needs to be a more dominant role of the ICC. The dependence of the Court on the States’ cooperation and the rage against the Court by the AU has left the ICC in a conundrum. The ICC requires the States’ cooperation and without this, there can be no expectation of the victims of mass crimes having recourse to justice or atrocious crimes from being prevented from occurring now and in the future. The step taken by Palestine to take the Israelis to the ICC helps restore support for the flagging claims of the Palestinian Authority to serve as the sole legitimate representative of the Palestinian people. However, the arguments against Palestine taking the Israelis to the ICC are something that needs consideration as well. This move could also prove to be fatal as the Israelis could move quicker towards closing the conflict and annexing West Bank. Their disproportionate reactionary tendencies to any formal action directed at the legality of their policies and practices can prove to be harmful to Palestine, but considering the strong support Palestine now has from the international community, a strong foundation is laid for Palestine the 50-year long deadlock.

By Guest Contributor Jessica Espinoza  L.L.M. at Harvard Law School Last year, the International Criminal Court (ICC) celebrated its 15th anniversary. When the Rome Statute was adopted in 1998, the international community considered it a historic milestone to establish the first permanent international criminal court, which unlike the many ad hoc tribunals established to deal with mass atrocities, would have a deterrent effect as a threat of legitimate punitive action already in place. However, throughout fifteen years in operation, many questions have been raised about the ICC’s credibility. First, its complementarity-based prosecutorial rules and policies have been mistaken for a political approach to its mandate. Second, the ICC has been blamed for having an African bias since, except for in one case, all of the situations under investigation involve African countries. Although factually and legally inaccurate, these claims have created a misconception on the legitimacy of the ICC. They have also caused –or perhaps helped craft the opportunity for– a group of countries to announce their intentions of withdrawal from the Rome Statute. Such was the case of Gambia, South Africa, and Burundi in 2016, only the last one successfully withdrawing from the treaty, and likely to be followed by others in the region. A Matter of Rules and Policies The essential feature of the ICC is its complementary character. The ICC acts only as a subsidiary body, closing the gap of impunity caused by the –ideally– exceptional inaction of the States. The whole Rome Statute system is designed over this premise. The ICC may exercise its jurisdiction over the crime of genocide, crimes against humanity, and war crimes, based on the principles of territory or nationality, provided the case is admissible on grounds of complementarity, gravity, and the interests of justice. That is, a case is admissible when there are no States exercising their jurisdiction in relation to the same person for substantially the same conduct, or if true, when the national proceedings are influenced by a lack of political will or judicial capacity to investigate and prosecute genuinely. Also, the case has to meet a certain gravity threshold, and the potential ICC investigation should not be contrary to the interests of justice and the interests of the victims. The interests of justice test is a countervailing consideration that may give a reason not to proceed with an investigation even when the jurisdiction and admissibility requirements are satisfied. To date, there is extensive ICC jurisprudence for the interpretation of these statutory rules. Since it is not the role of the Prosecutor, nor practically feasible for the ICC to investigate and prosecute every alleged crime or every allegedly responsible person for such crimes, the Office of the Prosecutor has designed policies to guide the exercise of the prosecutorial discretion and at the same time promote transparency in the selection of situations of conflict for the opening of an investigation, as well as the selection and prioritization of cases for investigation and prosecution. Among the factors that the ICC ponders are the scale, nature, manner of commission of the crimes, their impact on victims and communities, and the degree of responsibility or participation of the alleged perpetrators and the potential charges. Also, the Office of the Prosecutor issues an annual report on its preliminary examination activities as well as other situation-specific reports giving account of the phase that each situation is undergoing and the basis of the decision to either proceed or not with an investigation. All these rules and policies seem fairly clear for the claim of a politics-oriented ICC to be sustained. However, there is one aspect that may create the impression that the ICC is tainted by international politics, and which should be clarified: the role of the United Nations Security Council (UNSC) in referring a situation to the Prosecutor. There is three trigger mechanisms for the ICC to exercise its jurisdiction. The Prosecutor may open an investigation on a situation (i) proprio motu if previously authorized by a Pre-Trial Chamber, (ii) when referred by a State Party to the Rome Statute or (iii) by the UNSC, a political body. A referral by the UNSC must observe only the temporal and subject-matter competences of the ICC, irrespective of the territorial or nationality jurisdiction conditions. This mechanism allows the UNSC to refer situations of conflict taking place in States non-parties to the Rome Statute. The rationale for such an exception is that the UNSC would be acting under Chapter VII of the United Nations Charter, to maintain or restore international peace and security. It is true that three of the five permanent members of the UNSC are not States Parties to the Rome Statute, and would hardly ever be investigated by the ICC, but still can bring other non-parties under investigation. Yet, this is just another possibility within the vast measures available to the UNSC under Chapter VII, which actually turns out to be an important resort to increase the reach of the ICC action to potentially universal, as with the referrals of the Sudan and Libya situations –although unlikely for Syria, for instance. However, even when referred by the UNSC, a situation is subject to legal scrutiny, and the Prosecutor makes the corresponding assessment. The investigation is not automatically initiated. On its part, the African bias argument is a rather superficial one. There are in fact nine situations under investigation that implicate African countries, and the tenth involves a Eurasian country, Georgia. From the nine African-related situations, two were referred to the ICC by the UNSC (Sudan and Libya); five were at the request of the situation countries themselves, and only two were initiated by the Prosecutor: Kenya and Côte d'Ivoire. Kenya unsuccessfully appealed on grounds of jurisdiction and admissibility the authorization granted by Pre-Trial Chamber II for the Prosecutor to open the investigation (see resolution). Regarding Côte d’Ivoire, the Prosecutor opened the investigation in 2011, authorized according to the State’s declaration accepting the ICC’s jurisdiction under article 12(3) of the Rome Statute, initially made by President Gbagbo and then reconfirmed by President Ouattara, before becoming a State Party to it in 2013, yet compelled to fully cooperate with the ICC. Moreover, there are ten ongoing preliminary examinations awaiting a decision of the Prosecutor whether to open an investigation. These situations involve African countries such as Burundi –which notified its withdrawal from the Rome Statute in October 2016–, as well as countries from the Middle East, South Asia, South America, Eastern Europe, and even the United Kingdom with regard to the Iraq conflict, a country that many suggested would be safe from any ICC intervention. Positive Complementarity: Really Improving International Criminal Justice There is a fundamental part of the work of the ICC that is generally overlooked and really improving international criminal justice. During the Review Conference of the Rome Statute in 2010, it was noted that the notion of complementarity had created the idea of an “antagonistic relationship” between the ICC and the States, but that there was a positive aspect of this concept, too. The ICC promotes and engages in actions of positive complementarity to enable States to conduct genuine investigations and prosecutions as the Rome Statute system relies primarily upon national jurisdictions. These actions may take any form and be carried forward with the support of the ICC or by the States themselves with other stakeholders, such as international and non-governmental organizations (NGOs). The ICC organizes training courses for national counsel, judges and other judicial personnel with a train the trainer component to maximize the spread. There is also an ICC Victims and Witnesses Unit training project for local authorities on witnesses handling and security arrangements. Other projects developed by international organizations and NGOs include capacity building for judges and prosecutors, political support building, advising on legislative drafting and implementation, transitional justice activities, and financial aid for physical infrastructure (see compilation). Although there are few explicit implementation obligations in the Rome Statute, States Parties are nevertheless compelled to take all necessary actions to strengthen their prosecutorial and judicial institutions and adjust their laws and practice to ICC standards. Only when this is accomplished and every State is enabled to deal with the most serious crimes, international criminal justice will be happening on the required scale and have a deterrent effect. Conclusion The ICC has faced a series of criticisms that have damaged its credibility as an impartial, independent court. Frequently referring to its prosecutorial policies apparently conforming to international politics and an alleged bias against African countries. These claims are mainly due to a lack of knowledge of the ICC’s mandate and statutory capabilities, as well as political resistance. Besides its prosecutorial and judicial duties, the ICC promotes and works on positive complementarity actions aimed at strengthening national jurisdictions and encouraging national ownership of investigations and prosecutions. This is a major task for the ICC and one with a great potential to make a large scale difference.

By Guest Contributor: Michael Ristaniemi (LL.M. Uni. of Turku, Finland)  Currently, a Visiting Researcher at Berkeley Law and Legal Counsel at Metsä Group (on study leave). This piece summarizes the content of a talk he gave at UC Berkeley on 21 September 2017, as a part of the Humanities & Social Sciences Association Interdisciplinary Teaching Series. Setting the scene Throughout time, business has had an overwhelmingly positive effect in creating well-being for society. On the other hand, much of the concern about the future of our planet is concurrently a result of the past detrimental action of companies in the process of doing business. A question that is relevant to all of us is how to alter this status quo to one which minimizes the negative externalities of business while retaining the benefits we all enjoy. The relevance of this question is a way of describing the purpose of corporate sustainability since companies are both the main root cause and solution to our current unsustainable way of life. The UN Global Compact defines corporate sustainability as “(a) company’s delivery of long-term value in financial, social, environmental and ethical terms”. Indeed, executives will be interested in being sustainable to the extent that an action (or inaction) will align with and further its purpose to benefit its owners, thus providing a ‘business case’ for such conduct. From a company’s perspective, natural ways to do this are to harness technology and adopt other practices that are simultaneously sustainable and either bring cost savings or create goodwill with key stakeholders, such as with its customers. Examples include airlines wanting to transition to newer, more fuel-efficient airplanes in order to save on cost and thus becoming more competitive, which also helps conserve fossil-fuel and has the collateral effect of generating goodwill among consumers. Companies might however not naturally possess the incentives to act in a sufficiently sustainable way. This may simply be due to the still-prevailing notion that a company’s purpose is to create value for its shareholders, which may also be codified in legislation. While a company’s leadership does have a degree of discretion in determining how to create maximum shareholder value, this purpose can be interpreted narrowly so as to focus on mere compliance with laws instead of embracing a broader ethos towards being sustainable. There are however a number of ways stakeholders can incentivize companies to do good. The role of policymakers is crucial, they have a range of options at hand. They are able to either prohibit and restrict undesirable practices or – as a softer approach – to impose more comprehensive reporting obligations on sustainability-related matters of public interest as well as subsidize practices that are seen as beneficial to society. Reporting initiatives seem to be many regulators’ weapon of choice since so-called ‘non-financial reporting’ obligations have increased, an example of which is the 2014 EU Directive on non-financial reporting. Customers, NGOs or – in the consumer business – the general public are all able to set expectations for companies to conduct business in a certain manner, as well, particularly when companies are forced to become more transparent through increased reporting. All of the above amount to hurdles to gain a license to operate – practices that a company is inclined to adopt in order to help ensure the future success of its business. A number of international policy options exist Whatever incentives are preferred, corporate sustainability considerations must transcend a nation-state’s borders in order to have enough impact. The differences in various nations’ economies and the resulting imbalance does however not make cooperation simple. There are a number of possible international policy alternatives for cooperation, in general, that apply also for sustainability matters. These include possibilities ranging from both international binding agreements and non-binding standards; convergence among laws of different nations; case-by-case cooperation between authorities; as well as promoting sustainability with leading companies and their supply chains. The current state of affairs in corporate sustainability can be described as a hybrid of all of the above – an unstructured and unsatisfactory approach indeed. Binding international agreements are generally difficult, particularly when concluded multilaterally. Nations dislike relinquishing sovereignty by constraining themselves in such agreements. Moreover, interests vary greatly among nations, rendering reaching consensus among many nations a tiring mission. Further, international agreements do not usually create obligations that would directly apply to companies, this would require domestic regulation in each contracting nation. However, since territories on our planet are in any case governed by various nations, it is imperative to have their support in ensuring the adequate sustainability of whatever takes place in their respective territory, in whatever way possible. International trade agreements are an exception. They are a way for powerful nations, such as the EU and the US who are already serious about sustainability questions to leverage the influence they have in trade in order to induce sustainability commitments on the part of the other contracting nations as a prerequisite for entering into such trade agreement. Advancing a sustainability agenda in trade agreements is relevant in both bilateral and multilateral contexts. While said agreements do not impose direct obligations on companies, they do have the potential to pressure contracting nations to create appropriate national legislation to that effect. Non-binding ‘soft law’ and other voluntary options are easier to generate support for and may actually be the de facto most feasible path towards convergence and consensus internationally. Several examples exist of international non-binding standards concerning corporate sustainability. These include the UN Global Compact, the UN Guiding Principles, the OECD Guidelines for Multinational Enterprises, and the IFC Performance Standards. Multinational companies have a significant role in the utility of such standards: they can impose contractual obligations on actors upstream in their supply chain, which might consequently update detrimental practices in fear of otherwise losing a key customer, i.e. the leading company. However, the efficacy of such voluntary-based alternatives may fall short of what is sufficient, particularly when a company’s business incentives are not aligned with what the environment or society might need. Concluding thoughts Corporate sustainability as it currently is practiced is simply insufficient, from a global sustainability perspective. It brings mostly only incremental gains for the global society and it is difficult to see it extending further than what represents cost savings and other ‘low-hanging fruit’. Companies are not to blame, it is the framework in which they operate that needs updating. We need to truly incentivize businesses to strive towards being sustainable and making a positive social impact in the progress. This would constitute a transformative change, which requires stronger input and requirements imposed by policymakers and society at large, which, in turn, demands more dedicated cooperation internationally.

By Edward Richter Since his election, French President Emmanuel Macron has embarked on an ambitious plan: to reform not only France’s economy, but indeed the social underpinning of the nation itself as he seeks to reform the nation along Nordic lines. In doing this Macron has drawn praise from businesses and scorn from Unions who see his actions as condemning the French people to the mercies of the Anglo-American economic model. Whether Macron’s proposed legal reforms will follow the Nordic model as he says they will, or follow the Anglo-American model as his detractors claim, is at this point uncertain. However, by analyzing and comparing the underlying legal, social, and economic constructs of France and the Nordic countries, it appears that Macron’s current plans may be unviable. Synopsis of French Labor Law: The French labor market has been highly regulated since the 19th century with companies’ ability to hire, fire, and manage employees being regulated at the national level through the voluminous, complex, and opaque Code du Travail. The Code du Travail has been blamed for France’s high unemployment rates as it imposes considerable costs to hire and fire employees. The result has been a highly static labor market that ensures excellent security for those with jobs, but makes it difficult for many people to get jobs. Synopsis of the Reforms: The crux of Macron’s proposed changes is a two-pronged reformation of France’s labor laws by first overhauling the Code du Travail, and then restructuring France’s existing social safety net into something closer to the Nordic Flexicurity model. Macron has already made progress overhauling the Code du Travail as the Parliament has voted to let him pass the reforms by ordinance, meaning he only needs the Administrative High Court’s assent for the changes to become law. The first of the core changes that Macron has proposed is to place more emphasis on in-house labor talks as opposed to sector-level discussions in the hope that this will provide companies with greater flexibility during a downturn by allowing each one to negotiate a deal that fits their situation. The second major change is that when assessing the legality of a layoff plan, French judges can only look at the health of the company inside France rather than internationally. The third proposed change is that there shall be a predetermined scale for damages in wrongful dismissal actions which should make the cost of such actions more consistent for businesses. The fourth change is that the works, health, and safety councils that are needed for all companies with more than fifty employees shall be combined into one. The fifth major change is that the length and renewal terms of short term employment contracts will be decided on the industry rather than national level, which will give companies more flexibility in hiring short term workers. The result of these changes is that it will be easier to hire and fire workers, which should result in more people employed but lower quality jobs with less security. However, there has been relatively little movement to enact the reforms of the French social safety net to bring it in line with the Nordic model as Macron has said he intended to do. Indeed, the only real movement on this matter is that the minimum damages awarded for a wrongful dismal are to be increased, a far cry from the extensive safety net present in the Nordic countries. As such, any analysis of the impact of the second prong of Macron’s plan is premature, until he implements it, or it is revealed that there will be no implementation of it whatsoever. Comparison and Analysis: Macron’s claim that he is trying to create a Nordic style Flexicurity model is questionable. This is because while the Nordic countries do not have as many restrictions on businesses, the potential negatives of said lack of restrictions is balanced out by a generous social safety net. This safety net means people are essentially free to leave their jobs in search of ones that are a better fit for them or to pursue other endeavors, subject to a few restrictions. The French safety net meanwhile is less substantial in terms of the support it provides the unemployed in favor of ensuring greater protections and benefits for the employed. As such, without the implementation of the second prong of Macron’s plan, any hope of moving France to the Nordic model is fanciful. Furthermore, whether the second prong can be implemented is questionable.  This is because Macron’s goal of expanding the social safety net may come into conflict with Macron’s foreign policy goal of strengthening the E.U., which involves complying with the E.U.’s limits on public debt. This limits Macron’s ability to spend money on the social safety net, as he needs to cut spending. As such, it is highly questionable how Macron would be able to accomplish the second prong of his plan. More concerning is the possibility that even if the second prong is implemented France’s social conditions may be too divergent from the Nordic countries for their model to be viable. This is due in large part to differences in how France and the Nordic countries’ unions and businesses interact. Notably in the Nordic countries unions and the companies whose workers they represent have a largely functional working relationship which keeps wages to levels business can support to ensure businesses profit and hence higher more people. However, in France strikes and conflict between unions and businesses are endemic and so relations are fraught with tension, which may make it impossible for France to achieve the sort of trust that enables an equitable balance between business and unions. The result of the likely failure of the second prong of the plan is not exactly clear, but considering France’s existing social safety net it seems unlikely that France will end up like the Anglo-American countries with low unemployment but shrinking real wages. Instead, France may instead end up like Germany with low unemployment but a proliferation of short-term and part-time jobs in place of careers. Conclusion: Macron’s goal of shifting France onto the Nordic model by reforming French labor law and expanding the social safety net to enable more fluid movement of labor is laudable. However, difficulties are posed by his competing foreign policy objectives and the tense relationship between labor and management in France. While France’s safety net will probably prevent disastrous results like in the Anglo-American countries, the result will likely see a proliferation of short-term and part-time jobs like Germany. Authors Note: I would like to thank Professor Marie Mercat-Bruns of the Universities of Sciences Po Law School and the Conservatoire National des Arts et Métiers for her help in putting this essay together. Her most recent book Discrimination at Work compares anti-discrimination law in France, Europe, and America and is available free through Luminos the University of California Press’s open access publishing service.

By  Dru Spiller “Colorblindness” is the effective removal of minority identity for the purpose of official equality. Its use in Western European countries, who try to produce an anti-racist culture, creates benefits for disadvantaged people of color but it can also produce stereotypical and racialized representation of people of color in the media. European anti-discrimination laws and the principles behind their creation serve as the basis for the concept of colorblindness. World War II is often credited for the development of the European model of human rights and equality. This European concept of equality is also traced by Bruno de Witte in his essay “From a Common Principle of Equality to European Antidiscrimination Law” (2010); and by Daniel Sabbagh in his essay, “The Collection of Ethnoracial Statistics: Developments in the French Controversy” (2008). Both consider the aftermath of World War II and genocide in tracing the origin of, current cultural manifestation of color blindness. It was during the transition and reconstruction period following the war, as countries tried to make sense of the resulting chaos, that antidiscrimination became a high priority for the newly created intergovernmental organizations. In an effort to prevent another Holocaust, anti-discrimination began to play a very central role in individual state policies and eventually the European Union’s treatment of minorities. The European Court of Human Rights and the European Convention on Human Rights (Article 14) both contain language designed to protect against discrimination of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This same language is also translated into the national or state level by many European countries, including France, which has articles in their constitutions that are meant to ensure equality and prohibit discrimination. Although these state policies were created with the intent of producing a more tolerant society, the language calls for equality by forbidding the designation of “minority” characteristics as a separate entity. As a result, discrimination-against and concerns unique to minorities are often ignored in order to maintain the façade of cohesion and equality. Although many have estimated that the black population in France is the largest colored minority in Europe, the French policy of anti-discrimination and color blindness means that there is no numerical count of the black population because a census identifying race is illegal. This means there are no statistics to lean on when addressing the proper ratio of diversity in politics and media to accurately represent the ethnic make-up of France. Instead of creating laws that deal with the history and culture of racism stemming from neo-colonialism and, antisemitism, and how it affects the way people think and act, France has covered the issue by making any act of racial designation illegal. Not only are hate crimes illegal, but also any policy or action that has taken place because of race, creed, religion, or so on is unlawful. The issue, then, becomes how people of color, as supposed “minorities”, can prove and seek to address disparate treatment and how the non-minority citizens of the country can understand and address the embedded racism when many aspects of the conversation are banned. When anti-discrimination laws are designed only to produce a “colorblind” discourse, they become ineffective pieces of legislature that allow countries to appear post-racial. In this way, antidiscrimination laws produce a colorblind discourse that affects the ways in which people of color are seen. In his work on administrative violence and transgender politics, Dean Spade uses Critical Race Theory to explore anti-discrimination law and colorblindness as harmful factors resulting in the “neoliberal politics of denying that unequal conditions exist, portraying any unequal conditions that do exist as natural or neutral” (Spade 2011: 28). Within French media this idea translates into the racialized stereotypes of minorities. Media becomes the medium through which most people begin to understand the “other” citizens that they are not in regular contact with because of various economic and social reasons. When minorities cannot fully assimilate into a preconceived French identity, which is nearly impossible for Muslim and darker skinned immigrants, they are portrayed in ways that conform to the larger society’s stereotypes. Because the images of the racialized other in media roles conform to your stereotypes your biases are no longer considered discriminatory but an assessment of their natural condition. The lack of diverse minority representation in the French media contributes to the ignorance and ostracization from French society surrounding minority populations.  By attempting to create equality through anti-discrimination laws the country has created a system of colorblindness that delegitimizes the issues that minorities face from racism, ostracization, integration, and representation in favor of a more cohesive and seemingly equal nation. It is this system that allows French media to perpetuate the ideals of a society that supports their dominant view of French identity based on whiteness and that lack accurate representation of the non-white ethnic communities or portrays them in ways that contribute to immigrant stereotypes.

By Harris Mateen On November 8, 1968, the UN ECOSOC passed the passed the Vienna Convention of Road Traffic and the Vienna Convention of Road Signs and Signals.  These treaty intended to create a standardized system of rules and procedures to increase road safety between nations, making it easier to drive between different nations. These treaties helped standardize important signs used internationally. The Convention codified the use of red-yellow-green traffic signals, octagonal stop signs, and handicapped parking panels. Another important component of these treaties required cars to display clear symbols of their nations of origin. This has led to country codes and symbols being integrated into license plates. However, remnants of this original rule can be seen o many Swiss cars which display an oval with CH—for Confederation Helvetica—on their back bumpers. Several major nations including the United States, Canada, Australia, and China did not sign the treaty. This makes sense considering that the size of these nations makes driving into the countries from abroad more difficult than for many of the signatory nations.

By Sarah Pike The Internet can help promote shared international values through the exchange of information and ideas. However, it can also be a site of surveillance and abuse. With more of the world coming online, opportunities for privacy to be invaded will continue to grow. These violations matter to the international community due to their frequency, impact on human rights, and the ways they occur across borders and impact multiple jurisdictions. As the law struggles to keep pace with technological advancement, looking to the current international landscape may help to synthesize best practices while showing how far we have to go to protect the right to privacy in these spaces we all share. Privacy Problems: The Example of Doxxing There are a variety of ways in which privacy rights can be infringed digitally, including online abuse which is disproportionately gendered, racialized, or otherwise targeted at marginalized communities. One such example is doxxing, or doxing. Doxxing (from “docs” or “document” when the term originated with hackers) is the posting of personal information (ranging from social security numbers to home addresses) in order to cause harm. This release of private information can lead to a variety of frightening offline outcomes, from lost jobs to assault. Here, privacy concerns cut two ways. First, doxxing victims clearly invades their privacy through the publication of their uncovered or collated personal information. In the too-common cases of doxxers targeting marginalized individuals, “unmasking” those responsible may seem to serve justice. However, there is a second privacy interest to consider: that of the doxxers. Allowing states or private corporations to revoke the anonymity of users can have major consequences if these powers are then used in other contexts against minority, activist, or other communities who depend on anonymity to keep themselves safe. We may feel very differently about the doxxing of a private individual who speaks out about gender discrimination in her industry than we do about the release of private documents that show wrongdoing by powerful politicians in an authoritarian regime. We may wish for these cases to be differentiated by law, just as some countries’ defamation laws have different standards for public and private actors. However, online privacy laws currently diverge across countries. Some nations may distinguish such cases, others may not, and some may have no applicable laws at all. Though just one of many similar issues, doxxing reveals the importance of online privacy laws and the problems with their variance worldwide. A Lack of International Consensus Like other human rights, the right to privacy is outlined in a range of international human rights laws. Some, like the European Union’s Data Protection Directive, focus on current challenges raised by digital communications and devices. Others, like the Universal Declaration of Human Rights, were authored too long ago to have considered such technologies. Despite many such documents, there is currently no universally agreed-upon definition of privacy. In 2015, the United Nations appointed the first-ever Special Rapporteur on the Right to Privacy. The Rapporteur’s Mandate includes a focus on the “particular challenges arising in the digital age” as well as an effort to define the right to privacy. Until then, nations are addressing privacy questions to varying degrees. State & Corporate Actors Adoption and update of online privacy laws is proceeding worldwide. Though some nations have no relevant legal instruments, over 100 independent states and jurisdictions now have privacy or data protection laws. Still, these online privacy protections vary in their strength and breadth. The European Union’s Data Protection Directive, mentioned above, was considered a leading framework for its comprehensive protection of privacy. An updated General Data Protection Regulation involved many critical debates, and will come into force in 2018. These changes are encouraging other countries that had been considered online privacy leaders, like Canada, to review their laws as well, demonstrating the quick pace of change needed in this area. In India, the Supreme Court recently ruled unanimously that privacy is a right inherently included, and thus protected by, the Constitution. While recent updates to the Information Technology Act include explicit protections for online privacy, this new decision may push such protections even further in future. Some privacy laws are becoming more specific. The United Kingdom has started to focus on online abuse by individuals, by including doxxing and other forms of harassment in its recently updated cyber offense guidelines. Countries like Singapore and South Africa also have laws against online harassment. However, some countries have laws that are simply too outdated to adequately respond to contemporary online privacy issues. For example, the main federal statute governing online privacy in the United States is the Electronic Communications Privacy Act, passed in 1986. A proposed federal bill, the Online Safety Modernization Act, would make doxxing and similar online acts crimes under the United States Code. California has also passed its own California Electronic Communications Privacy Act, with modern provisions. Besides state actors, it is also important to consider large private corporations. Millions of clients worldwide may be impacted by the privacy policies and degree of government cooperation of such companies. This is especially true of social media platforms like Facebook and Twitter, which are often the venue of doxxing attacks and other forms of privacy invasion, such as government surveillance. As non-elected bodies, there may be particular concerns about allowing such actors to self-regulate. Online harassment and violence is only one of many potential threats to privacy in the digital age. Laws at both the international and national level have promise, but are still works in progress. As our online interactions expand, it behoves us to keep creating clear and robust protections for privacy.

By Sam Mottahedan In recent years, trenchant critiques have emerged over the reach of the European Convention of Human Rights (‘ECHR’) to British troops acting abroad. The controversy began with a report published in 2015 by Policy Exchange (a center-right think-tank based in London). In the hyperbolically-entitled Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Policy Exchange authors called attention to what they referred to as “a new form of judicial imperialism”, “the cavalier expansion” of the apparently civilian norms of ECHR to overseas armed forces that has, in their view, undermined military effectiveness. Alarmingly, despite not having been either authored or endorsed by a single international lawyer, the report was approved by last year’s Conservative party conference. The UK Secretary of Defense Michael Fallon has since announced an intent to follow Policy Exchange’s recommendations and derogate from the ECHR to “protect British troops serving in future conflicts” from persistent legal claims in future overseas operations. Albeit, in its more recent election manifesto, the Conservative Party has pledged to postpone any derogation or withdrawal from the ECHR till after Brexit, but misperceptions within government circles surrounding the ECHR still persist. Leaving aside the very questionable legal validity of a hypothetical derogation from the ECHR for the purposes of avoiding claims against the armed forces (dealt with here), I would like to address three misleading claims made by the UK Government on the apparent benefits of immunity, another unsubstantiated claim, and offer some conclusions. Misleading Claim #1: That the ECHR has only recently been found applicable to overseas operations Far from novel, the general understanding that the ECHR applied extraterritorially existed before the ECHR was even incorporated into UK law by the 1998 Human Right Act. Case law stretching from Loizidou (1996) to Al-Skeini (2011) has confirmed that human rights obligations can extend to both areas under effective control of a contracting state as well as to persons under the control and authority of state agents. This view is supported by the UN Human Rights Committee (‘HRC’) in Lopez Burgos (1981) as well as by the International Court of Justice (‘ICJ’) in it Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (1996) and on the Legality of the Threat or Use of Nuclear Weapons (1996). The ICJ, the Human Rights Committee and the European Court of Human Rights (‘ECtHR’) are all in agreement that human rights obligations do not disappear in times of armed conflict. In short, this so-called  “cavalier expansion” or growing “judicial imperialism” identified by the Policy Exchange is a vast exaggeration. Misleading Claim #2: That derogation would protect British service personnel from vexatious claims and “significant distress.” Civil obligations under the ECHR reside with the UK government for alleged breaches by public authorities. In other words, the UK government is liable for breaches by the armed forces, not individual army personnel.  There is no civil liability for individual military or civilian commanders in international human rights law. Armed personnel may only have personal criminal liability under international humanitarian or criminal law. Of course, the procedural duty under the ECHR to conduct a full and independent investigation into allegations of abuses may have had a significant personal impact on the service personnel called upon to give evidence. Yet these issues do not immediately demand an end to legal scrutiny, but an improvement in the procedures and standards of inquiries that call upon service personnel. Misleading Claim #3: That the ECHR was designed for peacetime The Policy Exchange report consistently describes the ECHR system as designed for “the peacetime conditions of post-war Europe”. Such an assumption certainly parts company with the approach authoritatively laid down by the International Court of Justice on the applicability of international human rights law in armed conflict. Any notion that the intention of the ECHR’s framers was that it applies only in peacetime is undermined by the text itself, in which Article 15 “provides that a state may derogate from the provisions of the Convention in times of war, rather than such provisions are rendered automatically inapplicable”. Further, the ECHR has experience with situations of conflict and insecurity, with an illustrious history of deciding cases from Northern Ireland, Cyprus, the Turkish-Kurdish conflict, and Chechnya. Arguments that the ECHR’s obligations are impractical and restrictive in times of difficult security conditions and armed conflict do not take into account the ECtHR’s flexible approach. In Jaloud v Netherlands, the ECtHR has expressly acknowledged that a State’s obligations may vary depending on the circumstances, and has made reasonable allowances for the relatively difficult conditions in which states must carry out investigations. In times of armed conflict, the Court has also confirmed in that the application of the ECHR has to take account of international humanitarian law, and in practice international humanitarian law is seemingly privileged. (Hassan v UK) An unsubstantiated claim: Human rights undermine military effectiveness. There is no dispute that military commanders and lawyers are concerned about the actual or potential impact of increasing judicial scrutiny on their existing practices. However, as Dr. Marko Miloniv points out, there is no evidence that such a disastrous impact actually exists. Rather, as he puts it, “many of their arguments manifest a broad-brush portrayal of human rights standards as wholly impractical in wartime”. We can at least expect concrete examples to be offered to demonstrate how human rights obligations undermine military operations before making such dramatic policy decisions. On the contrary, a strong argument can be made for European human rights obligations being actually vital tool in assisting military efforts. By shedding light on the failures that allow human rights breaches to occur, the procedural requirement of the ECHR compels governments to act on the very inadequacies and failures that also have an adverse affect on military operations. Take the Iraq Fatality Investigations’ report into the death of Mr. Ahmed Jabbar Kareem Ali, conducted to discharge of the UK’s positive obligation under Article 2 of the ECHR to investigate unlawful deaths. The report revealed that British forces in Basrah were not given any specific directions on how to stop looting.  Consequently, the report demonstrated how the situation in Iraq in 2003 became a “procedurally formless vacuum”, characterized by widespread use by armed forces of “homemade processes and procedures” and where “the level of punishment could differ according to the temperament and inclination of the soldier in command”. The technique of “wetting” was widely used by British forces to deter looting, and was acknowledged as “potentially dangerous for those that could not swim”. Another way in which some soldiers punished looters was by writing “Ali Baba” on their foreheads in permanent marker. Politicians might want such explosive details be left in the dark, but these revelations could only be beneficial in compelling relevant authorities to address reasons for the chain of command failures for future military efforts. Conclusion: The Right of Victims? Any argument for immunity should ultimately address the question of whether the UK should be held accountable for breaches of the ECHR by its armed forces abroad. Most are inclined to answer in the affirmative. Most importantly, if human rights are universal, then “accountability […] cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another state which it could not perpetrate in its own territory”. In the first place, the ECtHR’s ability to effectively secure compliance makes it uniquely well placed in terms of redress when human rights are breached. In the case of Mr. Ahmed Jabbar Kareem Ali, the ECtHR was able to assist his bereaved family while both domestic courts and the international criminal court had been unable to provide a remedy. The ensuing report into Ahmed’s death describes for instance the episode as a “clumsy, ill-directed and bullying piece of conduct”. It describes how Ahmed was apprehended by British soldiers for suspected looting; how his clothes were forcibly removed; how he was made to roll in a stagnant pool of water, while soldiers threw bricks at him; how he was transported to the Al-Zubair bridge and forced to enter the canal at gunpoint; how soldiers left him as he floundered and drowned. Such facts should leave us just as distinctly unimpressed as Judge Bonello by the UK government’s apparent “intent of regulating the conduct of its armed forces according to latitude” - an intent he aptly summarized as reducing the armed forces to “gentleman at home, hoodlums elsewhere”.

By Stephen Dockery The Court of Justice of the European Union will soon take up the question of whether data management agreements between US and European companies satisfy the EU’s rigorous privacy standards after invalidating the previous international data transfer agreement years ago. The Irish Commercial High Court decided last week that Standard Contractual Clauses that have been used for the handling of personal data transferred cross-continents need to be reviewed by the CJEU high court to see if they comport with European privacy protections. Following revelations of American surveillance programs, the CJEU tossed out the data transfer framework known as Safe Harbor, which allowed for self-certification of privacy standards, on grounds that the privacy protections for European citizens could not be guaranteed under the agreement. EU and US officials hammered out a new privacy agreement named Privacy Shield, which was announced last year after extensive negotiations. The final decision of the CJEU, when it comes, should bring some legal certainty to the international business community after years of tumult in the wake of the invalidation of the Safe Harbor privacy agreement in 2015 and the adoption of a new privacy system called Privacy Shield. Faced with the uncertainty of the new agreement many companies turned to standard contractual clauses to govern their international data handling operations in lieu of a tested privacy system. Despite the new agreement, the legal landscape that underlies the judgment, which invalidated the Safe Harbor, largely remains unchanged. The interplay of EU rights legislation, such as the Charter of Fundamental Rights of the European Union, with US surveillance mechanisms including the Foreign Intelligence Surveillance Act, Executive Order 12333, and the PRISM collection program remains central. The court resisted efforts to construe the Privacy Shield agreement as passing judgment of the adequacy of all American privacy laws and protections. Standard contractual clauses would likely need to withstand scrutiny on their own, the Irish Court said in its opinion. “Only data transferred and processed in accordance with the very detailed provision set out in the Privacy Shield Decision and its Annexes is deemed to be adequately protected,” Justice Caroline Costello said. The breadth of surveillance mechanisms in the United States and the lack of meaningful review of those processes drew the attention of the court. “To my mind the arguments of the DPC (Data Protection Commissioner) that the laws—and indeed the practices of the United States do not respect the essence of the right to an effective remedy before an independent tribunal as guaranteed by Article 47 of the Charter, which applies to the data of all EU data subjects transferred to the United States, are well 133 founded,” Justice Costello wrote about the Charter of Fundamental Rights of the European Union. The opinion draws attention back to some of the more intractable issues underlying American and European data transfers: The vast amounts of personal information that US surveillance agencies can scoop up backed by congressional and executive authority underlie much of the European resistance to American data transfer. Those are issues that largely cannot be addressed by trade negotiations between the two bodies. Largely toothless restrictions from the Commerce department will not fundamentally alter the surveillance state in America and standard contractual clauses don’t directly benefit from the mechanisms created in Privacy Shield, so they may be even more susceptible to challenge. Remedies for privacy invasion remained problematic as well. Justice Costello called privacy protections in the U.S. “a complex web of constitutional law, sector specific federal statutes, state statutes and common law rules” to which EU citizens may not be able to avail themselves. The CJEU will now be in the position of offering a uniform approach regarding the legitimacy of standard contractual clauses, offering certainty to companies who currently have to deal with individual data protection officers in each EU country. The 153-page opinion was intensely briefed by both sides, focusing on the extent and permissiveness of American surveillance programs and the degree to which European citizens could redress privacy violations in the United States. A five-page executive summary of the judgment is also available. Briefing on behalf of one of the parties challenging the data transfers was provided by the ACLU’s Ashley Gorski, the U.S. Department of Justice also filed a brief as an amicus curie.

By Nazo Demirdjian Introduction The 2012 Delhi Gang-Rape in India garnered unprecedented national and international coverage. No rape in India had amassed such attention before this incident. In 2013, the Delhi High Court justified capital punishment against the adult rapists, since the case fell under the “rarest of rare category.” The Indian Supreme Court upheld that decision in 2014 and rejected the rapists’ appeal in 2017 and 2018. This piece will explain the 2012 Delhi Gang-Rape very briefly before clarifying the decisions of India’s Courts. Furthermore, this piece will discuss the changes to India’s Penal Code. 2012 Delhi Gang-Rape On December 16 2012, the victim, Jyoti Singh (referred to as Nirbhaya before her identity was revealed), and her male companion, Awindra Pratap Pandey, were returning home after watching a movie in South Delhi, India. They boarded an off-duty bus, which had six male passengers, including the driver, who said they were heading in the same direction as the two. Soon after, Pandey realized the bus had gone off course and was headed in another direction. He objected, only to be verbally abused about the nature of his outing with Singh and their relationship. Pandey was beaten before being knocked unconscious by the perpetrators on the bus. Singh was then taken to the back of the bus, where she was repeatedly raped. The two victims were thrown out of the bus and discovered around 11 PM by a passerby. Pandey did not have any fatal injuries, but Singh did. On December 28, she was transferred to Singapore for further care after undergoing multiple surgeries. The next day, Singh died. The Trials Following the Rape, the Delhi Police began arresting the perpetrators, including a 17-year-old juvenile. In September of 2013, over nine months after Singh’s death, the Delhi Court found the four adults guilty of rape and murder. One of the rapists had hung himself in jail in March and the juvenile was sentenced to three years – the maximum punishment for a juvenile by Indian Penal Code. Three days later, the Delhi Court sentenced the rapists to death by hanging. In March of 2014, the Delhi Court upheld the verdict and the sentencing. This was as a result of the Criminal Law (Amendment) Act of 2013, which allowed capital punishments for rapists whose victim had died, been in a persistent vegetative state, or if the perpetrator had been a repeat offender. The same month, the Indian Supreme Court stayed the execution of two of the rapists to appeal their case. In May 2017, the Supreme Court rejected the appeal and upheld the Delhi Court’s decision. In July 2018, the Indian Supreme Court once again rejected the appeal of three of the rapists.  As of this publication, approximately six years since the 2012 Delhi Gang-Rape, the four adult rapists are still alive. While juvenile laws were amended in 2015, they cannot and were not implemented retrospectively. The juvenile has since been released from jail after serving the full three years. Implementation and Reforms While the Indian Court’s verdict was a positive step forward, the rapists are still alive. Indian courts often take multiple years to hear cases and implement sentences. The attention that was garnered by the 2012 Delhi Gang-Rape caused “fast-track” courts to handle future rape cases as quickly as possible. However, these courts have raised many issues. Primarily, they only apply to rape cases instead of all serious cases – such as murder. Secondly, “fast-track” courts lead to quick decisions with the possibility of finding an innocent bystander guilty. In 2013, Indian Penal Code reforms amended the age of a juvenile, the age of a minor, and defined rape more explicitly. Furthermore, any type of penile penetration is considered rape under the reforms. Prior, only vaginal penetration was considered rape. However, marital rape remains legal in India if the wife is above the age of 15. Additionally, the punishment for rape is synonymous with any same-sex activity – consensual or not. Lastly, under section 375 of the Indian Penal Code, rape is defined as sexual intercourse solely with a woman. This ignores men and transgender individuals, marginalizing an entire community of rape victims. Conclusion The 2012 Delhi Gang-Rape produced ripples through India’s justice system and Penal Code. The Indian government has begun to take steps in making the necessary changes, yet there is still a long way to go. Continuing to define rape explicitly in the Penal Code is the biggest hurdle India needs to overcome. By including everyone and criminalizing marital rape, India’s Penal Code will begin to take more needed steps. The Delhi Gang-Rape garnered unprecedented attention, now India must turn that attention into concrete progress.

By Sam Mottahedan On this day in 1943, a 26-year-old Robert Lowell is sentenced to one year and one day in jail for evading the draft.  From the infamous Danbury Correctional Institutional in Connecticut, he would write some of his most memorable poems for his collection The Land of Unlikeness (1946). He explained his decision not to serve in World War II in a letter addressed to President Franklin Roosevelt, where he stated his opposition to the Allied tactic of saturation bombing of civil population centres and the US demand for unconditional surrender. In his view such tactics intend “the permanent destruction of Germany and Japan”. He concluded: “I cannot honorably participate in a war whose prosecution, as far as I can judge, constitutes a betrayal of my country”. Lovell’s refusal to serve brings to mind recent developments in the right to conscientious objections to military service. To this day, Article 9 of The Charter of Fundamental Rights of the European Union is the only regional human rights instrument that explicitly recognizes the right to conscientious objection. However, since the late 1990s, conscientious objection has come to be recognised as a right derived from the right to freedom of thought, conscience, and religion provided by Article 18 of the International Covenant on Civil and Political Right as well as Article 9 of the European Convention of Human Rights. The endorsement of a right to conscientious objection to military service has been stated in a significant number of resolutions and recommendations by the UN Commission on Human Rights, and by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe. However, objections made by Lowell would to this day be unlikely to engage the right to conscientious objection. Although there is no international definition of conscientious objection, the Human Rights Committee has identified conscientious objection uniquely when the right to freedom of thought, conscience and religion conflicts with the obligation to use “lethal force”. In Enver Aydemir v. Turkey, the Grand Chamber of the European Court of Human Rights considered it legitimate therefore to restrict recognition of conscientious objection “to religious or other beliefs that included a firm, fixed and sincere objection to participation in war in any form or to the bearing of arms”. The General Comment of the UN Human Rights Committee implicitly endorsed such a view. In other words, selective conscientious objection is not an international human right. Objection to a specific war (as opposed to all wars) for non-pacifist reasons such as Lowell’s could only be recognized as a right by individual states. For strong arguments that selective conscientious objection should be recognized in the US see here; and by international law see here.

By Fatma Sassi On September 6, Belgium officially submitted its request to the Court of Justice of the European Union (“CJEU”) for an opinion about the compatibility of the Investment Court System (“ICS”) with EU law. This request - result of a Belgian internal political compromise intended to lift Wallonia's veto on the conclusion of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) – seeks clarification and asks the CJEU to shed light on the reformed system of dispute settlement between States and investors. Needless to say, this opinion – together with the Opinion 2/15 issued last May by the CJEU - will constitute a landmark decision for the future shaping of the EU investment policy. The present contribution will adopt a prospective approach and examine the potential legal issues raised by the ICS, especially in the light of the autonomy of the EU legal order, principle enshrined by the CJEU in previous case laws. This article will thus (1) describe the ICS system, (2) analyze the concept of autonomy of the EU legal order and (3) assess the viability of the dispute settlement system in regard to one component of this concept. 1) The ICS system – characteristics of the new investment dispute settlement Two years ago, in the context of growing suspicion towards FTA agreements, the European Commission launched a proposal to reform the investment dispute settlement system. The stated objective was clear: to restore public confidence in the EU trade and investment policy by shifting from the proposed Investor-State Dispute Settlement (ISDS) to an Investment Court System. Indeed, the use of ad hoc arbitral tribunals to solve claims between investors and host States became more and more controversial as sensitive cases began to shake the public opinion and to raise ethical issues concerning the lack of independence of the arbitrators appointed by the parties and the alleged harm to governments’ right to regulate. To overcome these criticisms, the European Commission introduced the ICS in the new generation of FTA's with third countries (Canada, Vietnam). This system establishes a permanent judicial structure composed of two courts - a Tribunal of First Instance and an Appellate Tribunal. The members of these tribunals are appointed by representatives of the Parties to the Treaty and must fulfill ethical requirements set up in the agreement. Therefore, this permanent system marks a turning point. It demonstrates the European Commission's will to increase the legitimacy of the investment dispute settlement, even though the system still presents shortcomings due to the involvement of political powers in the appointment process. 2) International agreements and autonomy of the EU legal order The CJEU held on multiple occasions that “an international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not, in principle, incompatible with EU law”. However, the CJEU also pointed out that “an international agreement may affect its own powers only if the indispensable conditions for safeguarding the essential character of those powers are satisfied and, consequently, there is no adverse effect on the autonomy of the EU legal order”. This principle of autonomy, established by the CJEU early 60's, entails that the EU has an internal order composed of several essential characteristics that neither domestic law nor international law can alter. In Opinion 2/13, the CJEU precisely relied on this latter principle to reject the EU's accession to the European Convention of Human Rights (ECHR), considering this accession as a threat to its exclusive judicial prerogative over the interpretation of EU law. In casu, the point of contention lied in the ability for the European Court of Human Rights (ECtHR) to hear claims from individuals and in fine to declare an EU measure contrary to the ECHR. In the CJEU's words, “if the Court of Justice were not allowed to provide the definitive interpretation of secondary law, and if the ECtHR, in considering whether that law is consistent with the ECHR, had itself to provide a particular interpretation from among the plausible options, there would most certainly be a breach of the principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law”. In Opinion 1/09, the CJEU had held the same reasoning and reached a similar conclusion with regard to the creation of an European and Community Patents Court. In light of these case laws, would the ICS constitute a breach of EU law? 3) Jurisdiction over the interpretation of EU law in the ICS The ICS gives foreign investors the right to challenge EU or Member States acts contrary to the   investment treaty provisions. In this regard, the ICS Tribunal might declare an EU measure in conflict with the investment treaty provisions and, in doing so, interpret EU law. To mitigate potential concerns with the CJEU's exclusive jurisdiction, article 8.31 CETA does try to introduce limits to the ICS Tribunal jurisdiction: * The Tribunal may not determine the legality of a measure under the domestic law of the disputing Party * The Tribunal may only consider the domestic law of the disputing Party as a matter of fact * The Tribunal shall follow the prevailing interpretation given to the domestic law by the court or authorities of that Party; * Any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party. If on paper this compromise seems to safeguard the principle of autonomy and the CJEU's prerogatives, it nonetheless raises significant practical issues. * Article 8.28 CETA invests the Appellate Tribunal with the power to review whether “the Tribunal has manifestly erred in the appreciation of the facts, including appreciation of relevant domestic law”. As underlined by Ankersmit, in its review, the Appellate Tribunal would then have to consider whether the Tribunal assessed EU law correctly. Therefore, in concrete terms, how to draw a line between a matter of law and matter of fact? Does this distinction of status really hinder interpretation of EU law by the investment tribunals? In our view, not so much. * Moreover, what the Tribunal should do if no prevailing interpretation of a domestic provision exists? Should the Tribunal go ahead and give a meaning to EU law? * Finally, the CETA precises that any meaning given to domestic law by the Tribunal will not be binding upon the institutions of that Party. However, the significant financial consequences of an award combined with the possible setting of a precedent for future claims create a de facto incentive for a Member State to comply on a longer term with an award and change its legislation. Therefore, are the ICS Tribunal awards in practice truly devoid of binding effect. 4) Conclusion Although the ICS tackles some of the criticisms suffered by the ISDS, it leaves crucial constitutional issues unanswered. Attempted accommodations in the text fail to prevent a tension with one component of the principle of autonomy – the jurisdiction of the CJEU - and raise even more interrogations. Hence, whether positive or negative, the CJEU's opinion will definitely constitute a landmark decision for the future of the EU investment policy and the institution of Multilateral Investment Court system.