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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 Dru Spiller On this day in 1952, Kenyan Governor Eveln Baring declared a state of emergency in response to the Mau Mau Rebellion. The British occupation of Kenya started in 1895 and the Mau Mau Rebellion was neither the first, nor the last, revolt against British colonial rule. Most of the fighters came from Kenya’s major ethnic group, the Kikuyu, who had suffered increasing economic marginalization as white settler expansion decimated their land holdings. While nationalists of the Kenyan African Union (KAU) argued for political rights and land reforms with the British government, radical activists splintered from KAU and began to employ militant national strategies. In 1952 the Kikuyu fighters began attacking political opponents and raiding white settler farms. This led to the British declaring a state of emergency and the deployment of army reinforcements into Kenya. What followed was a violent counter-insurgency. The state of emergency did not end until 1960. While the number of Mau Mau and other rebels has varied between 11,000 – 25,000, only 32 white settlers were killed during the insurgency. Hundreds of thousands of suspected leaders and fighters of the Mau Mau Uprising, including the future first president of Kenya Jomo Kenyatta, were rounded up and imprisoned. There were also those taken to detention and rehabilitation programs. These prisoners lived in deplorable conditions with a high risk of repertory diseases and violence. Prisoners were deprived of food, forced into labor, and torture. They have been described as the British gulag and as one Nairobi judge called a particular camp, “Kenya’s Belsen”. One colonial officer described the British work camps as “short rations, overwork, brutality, humiliating and disgusting treatment and flogging – all in violation of the UN DECLARATION FOR HUMAN RIGHTS” (articles 3, 5, 9, and 17 to say the least). Although neither the league of nations nor the UN existed, and the UN Convention Against Torture was not adapted until 1984 (signed by UK and Northern Ireland in 2003). The Magna Carta provided clauses against unlawful detention. “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land” (Magna Carta Clause 40, 1215). In a landmark case in which a former colonized nation sued their former colonizer, Mau Mau survivors sued the British government in a case that alleged castration, physical, and sexual abuse. In 2013 the case eventually led to 5,228 victims receiving a total of 19.9 million pounds. In 2016 the Kenyan Emergency Group Litigation brought another case to the London High Court seeking reparations for survivors. Litigation is ongoing.

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.

By Edward Richter October 6th, 1976 was the date of the Thammasat University Massacre in Thailand, where it is simply known as the October 6th event. The reason for the massacre is that on September 19th the countries former military dictator Thanom Kittikachorn returned from his exile in Singapore. As Thanom had been ousted only three years earlier due to his gross unpopularity, this return was met with widespread protest. These protests in turn led to violence with anti-Thanom protestors, and on September 25th protesters had been beaten to death by Thai Police. This led to even greater unrest, which culminated into the Thammasat University protest where a dramatic reenactment of a hanging took place, with the victims possessing an unfortunate resemblance to the crown prince. The resemblance to the crown prince provided the police, military, and right-wing military groups an excuse for a crackdown, which resulted in an encirclement of the campus and then a systematic killing of all the students they encountered through the campus, this was a prelude to the return of Thailand to military rule. While the event has had considerable importance in modern Thai culture, the perpetrators have since been granted amnesty which has denied Thai society the justice of having them answer for their actions. What occurred at the massacre was a clear violation of Articles 3, 19, and 20 of the Universal Declaration of Human Rights, as well as arguably a violation of article 10, due to the amnesty that they were granted. Is it worthwhile for the survivors of the massacre to try and seek justice in an international forum given the fact that Thailand was one of the original signatories of the Declaration? Their actions are in clear violation of its provisions, but is there no hope for recourse through the Thai courts? Alternatively, would it be better in light of the ongoing tension in Thailand to further emphasize the move towards reconciliation that the country has been undergoing in trying to reduce the social strife that gave rise to, and in light of the 2014 coup continues to give rise to, violence in the country.

By Sarah Pike The Southern Bohemia Region (Sudetenland) in the Czech Republic, by DaveLongMedia. Available here. September 29th, 1938, was the date of signing of the Munich Agreement. Germany, Italy, France, and the United Kingdom signed the agreement, allowing portions of Czechoslovakia to be annexed by Germany. The area under agreement was termed the Sudetenland, for the Sudeten Germans living there. The document was drafted entirely without Czech input. Feeling betrayed but essentially powerless, the Czech government accepted the agreement the next day. The minority Sudeten Germans had indeed been pressing for autonomy, and had resultingly been guaranteed more rights by the Czech government. However, today this movement is partly seen as having been co-opted by Hitler--via his backing of the Sudeten German Party--to allow the Nazis to gain territory in Czechoslovakia without force. More broadly, the Munich agreement is now regarded as part of the failed appeasement of Hitler, and is even used as shorthand for the dangers of such a strategy. Beyond the long shadow cast by the annexation of the Sudetenland and the path to World War II, practical elements of the agreement’s signing remain relevant today. First, how can we approach agreements that impact a nation’s interests when that nation is not at the bargaining table? What about the “law of nations,” articulated since Vattel’s seminal work, that each sovereign shall control its own territory and not be dictated to by another? Treaties were imagined as a protection against unilateral behavior, but can clearly be their tool. Can international bodies provide greater recourse today for protestation of unfair agreements? Or can powerful nations continue to enforce that “might makes right”? Further, groups within nations have continued to consider autonomy, from separatism in Québec to the independence referendum in Catalonia. How should such requests for sovereignty best be handled, and protected from co-option? What reasons for independence are considered valid, especially for minority populations?

By: Betsy L. Fisher Update: Just after publication, the Supreme Court ruled in Sessions v. Morales-Santana that gender-based distinctions in U.S. nationality law violate the Fifth Amendment's Equal Protection Clause. Bad law makes bad cases. The recent case of Miranda v. Sessions, clearly demonstrates this principle. In Miranda v. Sessions, an individual with close ties to the United States, whose mother naturalized while he was still a minor, was denied U.S. citizenship because of reliance on antiquated notions of parental responsibility and gender roles. Although U.S. case law largely prohibits discrimination on the basis of gender stereotypes, and the international community is working to eliminate gender discrimination in nationality law, Miranda illustrates a lingering form of discrimination in U.S. nationality law. Despite the court’s attention to issues of res judicata, the broader question raised by the case is: what role do findings of “legitimacy” have in nationality law? “Legitimacy” is a legal concept defining the legal rights and obligations of children to fathers; traditionally, a child of unmarried parents did not have a legal relationship with the child’s biological father. But in the day of DNA testing, why do such distinctions still matter? Miranda was born outside the United States to unmarried parents and later moved to the United States with his biological mother. His biological parents later married, thus legally legitimating the relationship between Mr. Miranda and his father, although there is evidence that the father did not provide for or take a significant role in raising Mr. Miranda. Mr. Miranda’s mother became a naturalized U.S. citizen while Mr. Miranda was still a minor, and on that basis, Mr. Miranda asserted that he had obtained derivative U.S. citizenship as well. Not so: the applicable law when Mr. Miranda was born, 8 U.S.C. 1432(a) provided that: A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions: . . . . (3) . . . [T]he naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is unmarried and under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the [mother] . . . . Congress eliminated this distinction of “legitimacy,” but only prospectively, leaving the nationality of individuals like Mr. Miranda subject to an antiquated gender stereotype: fathers are the head of the family, children should follow the status of their father rather than their mother, and that, when parents are not married, children should follow the status of their mother as “illegitimate” children. Because Miranda was legitimated, he followed his father’s nationality status. Miranda’s mother's naturalization did not result in Miranda becoming a naturalized citizen, even though he was under the care of his mother. While these distinctions have been abolished in many areas of law, they remain in U.S. nationality law. Even after amending provisions that relate to the children of naturalizing parents, formerly in 8 U.S.C. 1432, this distinction still remains for children born to U.S. citizens—two entirely different sections cover births to U.S. citizens in wedlock (8 U.S.C. 1401) and out of wedlock (8 U.S.C. 1409). This distinction has survived judicial scrutiny thus far but faces a current challenge in the Supreme Court. Of course, Congress has broad authority in setting immigration and nationality, but it must exercise its authority in ways that do not conflict with established constitutional rights, such as the guarantee of equal protection under the Fourteenth Amendment. Under that clause, many distinctions were struck down in the 1970s, particularly under litigation brought by now-Justice Ruth Bader Ginsburg. As Cary Franklin noted, a prevailing principle in Equal Protection Clause sex discrimination cases is the anti-stereotyping theory, which “dictated that the state could not act in ways that reflected or reinforced traditional conceptions of men’s and women’s roles.” The assumption of 8 U.S.C. 1432(a) is that a child whose mother naturalizes, but whose father does not, has an attenuated tie to the United States. Notably, the assumption of 8 U.S.C. 1401 and 1409 is that a child born to a U.S. citizen mother out of wedlock has a closer tie to the United States than a child born out of wedlock to a U.S. citizen father. The juxtaposition of these statutes illustrates the arbitrariness of these stereotypes. Assumptions that men are ill-suited to being caregivers, that men in all circumstances were better suited as executors of estates, that women were not entitled to benefits to support their spouses, and that women could be better trusted to drink alcohol, were all struck down as unconstitutional distinctions under the Fourteenth Amendment. Assumptions that men are always the leaders of families and that children—even those who are raised by their mothers—should follow their fathers’ status, or that children are not close to their biological fathers if their fathers are not married, are based on similarly harmful assumptions that should be rejected. The international community, through two global campaigns, is working to end harmful gender-based distinctions in nationality law. UNHCR’s plan to end statelessness by 2024, as well as the Global Campaign for Equal Nationality Rights, aim to end gender-based discrimination. Ongoing distinctions in U.S. nationality law are outdated—and they also put the United States squarely at odds with international trends toward gender-neutral nationality laws. Congress should amend nationality law to end distinctions of “legitimacy” and apply those changes prospectively and, failing their action to do so, courts should intervene to remove these harmful distinctions. About the Author: Betsy L. Fisher is the Policy Director at the International Refugee Assistance Project. She is a graduate of the University of Michigan Law School, the University of Michigan Center for Middle Eastern and North African Studies, and Denison University. This post reflects her views only.

By: Christy Chidiac Geopolitical context and international arbitration are intertwined. Contemporary political events illustrate an undeniable retreat of the most developed nations towards protectionism. In reaction to Brexit, many commentators concluded that enforceability of international commercial arbitration awards is safe thanks to the applicability of the New York Convention. Conversely, even if the enforcement of ICSID investment arbitration awards is automatic due to Article 54 of the ICSID Convention, its execution may depend on States willingness to render it efficient through the diverse applicable national laws on immunity from execution. After all, this decision falls within States sovereignty, and at the heart of States decisions, lies public opinion. Public disapproval towards globalization goes hand in hand with the growing mistrust for foreign investment and investment arbitration, as showed by the European protests to the recourse of Investor State mechanism as part of the TTIP or CETA. In this context, arbitration mechanisms are related to globalization and corporation’s governance, hence the fundamental risk is that limitations on arbitration may become popular. As Professor David Caron Caron asserts, State acts to reform the investment treaty regime are a response to, or even a form of, backlash against that regime. Procedural reforms of investment arbitration in the past fifteen years focused on an increase of transparency, including possibilities for public hearings, and publication of arbitral documents. Additional substantive reforms also took place, with more detailed treaties provisions. Moreover, commercial arbitration is not immune from the risk of growing mistrust, as it may adjudicate for illegal activities for instance, under protection of confidentiality. These observations raise questions about the possibility of rendering international arbitration more democratic. Moreover, may public opinion and political context not only affect the transparency but also the efficiency of international arbitration mechanisms? If so, how should the effects of contextual fluctuations on arbitration efficiency be countered? The recent evolution of French legislation illustrates these issues. Limitations on execution of ICSID arbitral awards The ICSID Convention departed from the New York Convention’s recognition and enforcement procedure as it established an automatic system with no judicial review. Article 54 of the ICSID Convention requires each contracting State to recognize and enforce the pecuniary obligations in an ICSID award as if it were a final judgement of a court in that State. However, articles 54 (3) and 55 provide that even though State Parties to the ICSID Convention have waived immunity from jurisdiction, they have retained their immunity from execution as a matter of national law. The United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (the 2004 Convention) aims to enhance legal certainty and contribute to the harmonization of practice in the law on state immunity. France is a signatory to the 2004 Convention; however, it is not yet in force as the minimum number of signatories has not been reached. Absent uniform rules on execution such as those established by the 2004 Convention, the difference in national laws on state immunity from execution is suitable to forum shopping, which frustrate the ICSID Convention’s objective of offering an effective mechanism for the recognition and enforcement of arbitral awards. For now, the law of state immunity remains more a matter of comparative law then international law. The Loi Sapin 2 restrictions on enforcement of arbitral awards Article L.111-1-1 of the French Code of Civil Procedure for Enforcement now provides that enforcement measures relating to property belonging to a foreign State may be authorized only if the following cumulative conditions are met: The State has expressly consented to the application of such measures;The State has reserved or assigned the property to the requesting party;Where a judgment or arbitral award has been made against the State concerned and the property in question is specifically used or intended for use by that State otherwise than for the purposes of public service;There is a relationship with the State entity against which the proceedings were instituted. Furthermore, the Loi Sapin 2 introduced new restrictions relating to the enforcement of a claim against a foreign State on the initiative of the holder of a debt obligation (Article L. 213-1 A of the French Monetary and Financial Code) or any instrument or right with characteristics similar to a debt instrument (Article L. 211-41 of the same Code). These provisions are to prevent abusive proceedings from hedge funds acquiring claims against States in financial difficulty. Most importantly, Loi Sapin 2 goes further than the 2004 Convention through introducing a new authorization procedure, which is necessary for any interim or compulsory enforcement action against property of a foreign State. This new procedure is intended to provide a filter for abusive creditor claims. It requires the creditor to seek an order from the court for an interim or enforcement measure against the foreign State. The order will be granted at the discretion of the court, which assesses the matter ex parte, to avoid concealment of the property. The burden is on the creditor to demonstrate that the property concerned is suitable for seizure. This new step restricts the enforcement of arbitral awards, and will certainly lengthen the time involved and introduce uncertainty in the recovery of claims against a foreign State. To summarize, the new law aims to (i) clarify the changing case law on immunity from execution in France, from which could rise diplomatic disputes (ii) prevent abuse from hedge funds acquiring claims against States in financial difficulty. As to the third aim, concerning the authorization procedure, it should be noted that this reform intervenes (i) after the Yukos award of July 2014 granting 50 billion dollars to former shareholders of the company against Russia (ii) while seizure attempts are taking place in France against Russian properties, and a Russian diplomatic note was addressed in this regard to the French embassy. To conclude, the provisions of Loi Sapin 2 should be considered when drawing up State immunity waiver clauses in contracts between private operators and host States. The new law complicates the execution procedure required to recover debts against foreign States, requiring prior auditing of claims and an analysis of the geopolitical situation of the concerned State. It shifted French law from investor-friendly to more protective of States assets. Indeed, French law shifted from a flexible one  allowing forum shopping, to a restriction that goes even further than the 2004 Convention. Hence, the welcoming of enforcement of investment arbitration awards, and thus, efficiency of Investor-State dispute mechanism is restricted in France. It contrasts with the difficulty to challenge enforceability of commercial arbitration awards. This new law may be part of the States geopolitical situation and tendency to reform investment arbitration in response to backlash, especially considering diplomatic relations with Russia or the European protests on investment arbitration. It reflects how states sovereignty, which includes the safeguard of diplomatic relations and democracy, has a growing importance in the context of protectionism. How to limit the effects of contextual fluctuations on arbitration efficiency? Certainly, by giving effect to the 2004 Convention.