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By Guest Contributor: Laura Nyantung Beny Professor of Law, University of Michigan Law School Co-editor of Sudan’s Killing Fields: Political Violence and Fragmentation Following decades of civil war in Sudan, in 2011 South Sudan became an independent nation due to an internationally brokered peace agreement and referendum on secession. At independence, Southern Sudanese and many international supporters were jubilant and full of great hope for the new country, a region which had been in nearly perpetual conflict. Early hopes and celebration gave way in December 2013 to an intractable conflict, now recognized as a civil war, between rival factions of the ruling Sudan People’s Liberation Movement/Army (the “SPLM/A”). The competing factions include forces loyal to President Salva Kiir, a Dinka, and former Vice President Riek Machar, a Nuer. The humanitarian situation is dire. The United Nations (UN) and other bodies have issued warnings about ethnic cleansing and impending genocide. Over 3 million people have been displaced, internally and in neighboring countries. The UN has declared famine status in several regions. Reports chronicle massive human rights abuses, including gender-based violations, such as rape and sexual harassment. Peace remains elusive. The UN Security Council, governments, and civil society groups have put forth multiple proposals to end the conflict and restore peace to South Sudan. Proposed measures include: UN sanctions (general and targeted); criminal tribunals for culpable leaders; international peacekeeping forces (AU and UN); and national dialogue. Ironically, some have even proposed “neo-trusteeship” for South Sudan. None of these preceding measures alone is sufficient to end the conflict. Some, like national dialogue, are necessary, while others, like criminal tribunals or sanctions, might be unnecessary for peace. This commentary gives an overview of several of the proposed measures and potential obstacles to their success. It concludes that the most promising, indeed indispensable, measure is an indigenous, all-inclusive peace process. Trusteeship is especially problematic, as it would entail a break from the foundational basis of South Sudan’s sovereignty – self-determination. Chapter VII of the UN Charter authorizes the UN Security Council to undertake measures to keep or restore international peace and security. Article 41 gives the Security Council a broad range of non-force options, including general and targeted sanctions. General sanctions apply to an entire country, while targeted sanctions apply to specific individuals or entities therein. Both are intended to bring pressure to bear on warring parties to achieve peace. The Security Council has created twenty-six sanctions regimes since 1966. In December 2016, under strong pressure from the U.S., the Security Council put forth a resolution for a general arms embargo against South Sudan and targeted sanctions. The resolution, which failed to garner the required support among Security Council Members, would have prohibited UN Member States from selling arms to South Sudan. Security Council members that supported the resolution, including the U.S., argued that an arms embargo would reduce the violence in the country and impede the proliferation of arms in South Sudan, thereby creating conditions conducive to dialogue among the warring parties. Countries that opposed the arms embargo argued that it would undermine South Sudan’s progress toward national dialogue and its cooperation with UN peacekeeping operations. UN arms embargoes have a troubled history. A 2006 Oxfam-commissioned study found that “every one of the 13 United Nations arms embargoes imposed in the last decade has been systematically violated”. Simply put, there are multiple illicit channels through which arms might enter a country subject to an arms embargo. Even if an arms embargo were to work, South Sudan would still be awash in arms. Stopping the violence would also require largescale disarmament of existing weaponry and other long-term measures, such as an inclusive national peace process, as discussed below. At any rate, the proposed arms embargo failed to pass in the face of objections from Security Council Members, such as China and Russia, which have intense geopolitical interests in the region. In 2015, the Security Council adopted Resolution 2206. Resolution 2206 calls for targeted sanctions against specific individuals and entities deemed “responsible for or complicit in, or [as] having engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of South Sudan.” The targeted sanctions include a travel ban and asset freeze for culpable individuals and entities. The idea is that targeted sanctions, as personal penalties, reduce incentives of individuals and entities to engage in armed conflict. By the end of 2015, the Sanctions Committee had identified six individuals subject to targeted sanctions, half from the government and half from the opposition. These sanctions have not stopped the conflict, in which armed groups continue to proliferate. In fact, existing evidence suggests that targeted sanctions generally don’t change their targets’ behavior. Resolution 2206 implicitly assumes that top commanders responsible for the conflict are readily identifiable. However, the centers of the South Sudanese conflict are diffuse, which renders it difficult to clearly identify responsible individuals. Therefore, targeted sanctions are bound to be under-inclusive. Another implicit assumption is that the culpable parties have assets abroad or travel frequently. Yet, many of the commanders do not have extensive foreign dealings. Furthermore, those who do travel abroad relatively frequently and/or have assets abroad can relatively easily undermine the sanctions – e.g., by using false passports or hiding assets in complex ownership structures. The failed December 2016 Security Council resolution also sought to impose targeted sanctions on three more government and opposition figures, including the former Vice President, Riek Machar. Indeed, political jostling by powerful Security Council members, like China, Russia, and the U.S. tends to preclude effective measures from that body. In November 2016, South Sudanese and international civil society groups urged the African Union to establish a hybrid court to try those responsible for war crimes in the conflict. Ending impunity for massive human rights violations in South Sudan is an attractive goal and would be welcomed by many South Sudanese. However, some have argued that criminal tribunals cannot bring peace to South Sudan and might make matters worse by alienating the leadership. By contrast, recent scholarship suggests that individual criminal accountability for human rights violations can have positive impacts. Also, criminal prosecutions would provide an important forum for South Sudanese victims to air their grievances. Nevertheless, criminal trials alone will not bring peace. They are insufficient and might be unnecessary for peace if the national peace process includes truth and reconciliation measures. The Wunlit Nuer-Dinka Reconciliation Process of 1999 (“Wunlit”) provides a successful prior model of extra-legal reconciliation between Dinka and Nuer rival factions. Furthermore, war crimes trials are extremely expensive and very few perpetrators are convicted per dollar invested in such trials. The billions of dollars required to run a criminal tribunal would probably be better spent on rehabilitation of devastated local economies and livelihoods; education; public health; youth- and gender-focused programs; widespread disarmament; and widespread grassroots community-based peace and reconciliation processes modeled after Wunlit. The most extreme proposal is a “neo-trusteeship”:  “a governing arrangement that involves the transfer of some or all sovereign powers to a trustee.” The length of the trusteeship, the identity of the trustee, and the extent of sovereignty transferred would have to be worked out in the legal instruments creating the trusteeship. The purported goal is to create political stability and functioning institutions, rule of law, etc., before handing sovereignty back to the South Sudanese. The implicit assumption is that South Sudanese are incapable of governing themselves and thus require external guidance. Ironically, European colonialists made similar arguments in the 19th-century when they carved up Africa among themselves. The prevailing notion at the time was that Africans were incapable of sovereignty and thus outside the international legal order. Contemporary research shows that trusteeships tend to fail without the government’s and citizens’ support. Without support, which does not exist in South Sudan, trusteeship might exacerbate violence, especially where it creates a power vacuum. Recent cases – Afghanistan, Bosnia, East Timor, and Iraq – offer cautionary tales regarding the potential pitfalls of “neo-trusteeship”. The most problematic aspect of trusteeship is that it requires a break (even if temporary) from the foundational basis of South Sudan’s sovereignty – self-determination. Paradoxically, some proponents of neo-trusteeship were once strenuous defenders of the Southern Sudanese right to self-determination. As I have argued elsewhere, an indigenous and all-inclusive national peace process is indispensable to permanent peace and stability in South Sudan. Indigeneity and representative-ness, however, are usually missing from the international fora where many of the existing proposals emerged. Many communities and groups are excluded from high-brow, top-down approaches to peace promulgated by cadres of briefcase expats and experts far-removed from centers of conflict in the peripheries of South Sudan. Peace must be indigenous, inclusive, and community based. Traditional authorities, who often have more influence on rural militias and youth than the state and the national army, should be included in the process. Wunlit provides a model of people-to-people peace that can be scaled nationwide to multiple centers of conflict, addressing local sources of conflict, facilitating truth and reconciliation, and fostering development cooperation. For durable peace, community-centered peace processes must be pursued in parallel with the state-centered peace initiatives, thereby preserving the self-determination foundation of South Sudan.

By Arjun Ghosh Arbitration is a useful way to settle commercial disputes because arbitration proceedings are usually faster and cheaper than traditional court proceedings. Parties can choose the governing law they wish to apply in advance as well as prescribe other features in the agreement, rather than be bound by the governing law in the jurisdiction where the proceeding is taking place. Traditional court proceedings are still preferred by some parties because when a court issues a judgment the winning party can rest assured that the government will enforce the award, even by force if necessary. In the United States, for example, if you were to win a judgment against another party in a court proceeding, and that party refused to pay the award, the court could send law enforcement officers to collect the payment. When utilizing one country’s court system to settle an international dispute, however, enforcing an award in a country other than where the settlement was issued may become a problem. If an American company sues a Chinese company in an American court and wins, for example, the Chinese government is not required to dispatch their law enforcement officers to enforce an award issued by an American court. So while in domestic disputes, a court ruling is more enforceable than an arbitration award, in international disputes, arbitration awards are often more enforceable, and are therefore the preferred dispute resolution process. Arbitration awards can be easier to enforce than court awards because of international treaties; most notably, the New York Convention (NY Convention), which is ratified by 157 countries. The NY Convention was first adopted by the United Nations in 1958. It stipulates two primary requirements for its members. First, members’ courts must recognize agreements between parties to arbitrate agreements (by for example, enforcing a mandatory arbitration agreement), and second, members must recognize and enforce any arbitration awards won in any other member state, with certain narrow exception. While the NY Convention requires counties to honor these arbitration agreements, parties still have to go to court in the country where they seek to have their award enforced and have the court agree to enforce it. The NY Convention simply prescribes the court’s action in such an event. The NY Convention accomplishes this by requiring its members to pass laws which direct its courts to honor and enforce international arbitration awards. For example, in the United States the Federal Arbitration Act (FAA) requires courts to enforce foreign awards. Like in domestic court proceedings, there are certain circumstances which might lead to a situation where an award is justifiably unenforceable. The NY Convention, like domestic laws, describes several situations in which a country may refuse to enforce an international arbitration award. For example, if a party to the arbitration was under some incapacity, or was coerced, or the victim of fraud, or several other situations described in the convention, then a court may be justified in not enforcing the award. In addition to the more general defenses a country may use to justify not enforcing an award, there are some specific reservations that counties may apply. For example, a country may choose to only recognize and enforce awards issued by other member countries, or only awards that are related to commercial disputes. Currently, 157 countries have signed onto the NY Convention. Forty United Nations member nations, however, have not signed on. While most commercial transactions are occurring in countries that are signatories, there are some notable countries missing, Belize and Taiwan for example. It is essential when entering into an international arbitration proceeding to select a signatory country as a forum, so that parties may have confidence in their ability to resolve a dispute and have the award enforced. Many international disputes have involved companies based in Taiwan and Belize or other non-signatory countries where foreign parties are unable to collect the awards they have won because those governments refuse to enforce awards. In a current case pending before the Supreme Court of Belize, Belize Bank Limited v. Government of Belize, the Bank seeks to force the government of Belize to enforce an award it won through an international arbitration. The ruling was struck down by the Caribbean Court of Justice (CCJ) as unenforceable in Belize as a matter of public policy. Belize Bank is now in the process of trying to have the award enforced in the U.S. The Supreme Court of the United States has ruled on the case and upheld the arbitration award in favor of Belize Bank, but the government of Belize rejected that judgment. They claimed first that they were not bound by decisions of US courts, and also that Belize Bank had no right to seek enforcement in U.S. courts because the CCJ is the highest regional judicial tribunal and therefore their decisions not subject to appeal. Even given these limitations, enforcing an international arbitration award in a non-signatory country is possible, though it often requires a strategic application of local law. The U.S. has a policy on enforcement of international arbitration awards which provides guidance for addressing this increasingly common issue. The main strategy that the party seeking enforcement must use in such situations is employing economic leverage, and we can look back to Taiwan for an example. Even though Taiwan is not a signatory to the NY Convention, it is a sophisticated player in international commerce and needs a viable mechanism in place for successful and complete commercial dispute resolution, or commercial activity would be greatly hampered. A party seeking to enforce an arbitration award in Taiwan will try to have a local Taiwanese court recognize the award, even though the NY Convention will not require them to. Instead, Taiwan has its own version of the FAA, the Taiwan Arbitration Act (TAA) which guides its arbitration proceedings. One of these guidelines is that the enforcement of arbitral awards be guided by the reciprocity principle, meaning that Taiwan will enforce arbitral awards rendered in countries that recognize and enforce arbitral awards rendered in Taiwan. Since Taiwan relies on trade with many other NY Convention signatory countries, they have essentially, with the TAA, bound their courts to enforce arbitral awards rendered in NY Convention countries, or fear economic retaliation in the form of loss of business or trade sanctions. To mitigate these concerns, corporations should aim to engage in large-scale commercial transactions only with NY Convention signatory countries or with companies with substantial assets in signatory countries. Even in non-signatory countries, because of the increasing interdependence of national economies and growing trade, alternative strategies may be used to influence governments to encourage their courts to enforce international arbitration agreements. When large-scale international commercial disputes occur the stakes are usually quite high and the party seeking relief will want some assurance of justice. International treaties have increased the amount of certainty that parties can have when entering into these cross-border transactions, but because not all countries have signed onto the NY convention, there is still some uncertainty inherent in these transactions.

By Iosif Sorokin An Environmental Impact Assessment (EIA) is a procedure for evaluating the likely impact of a proposed activity on the environment. EIAs typically require a detailed analysis of the environmental impact of a proposed action, careful consideration of alternatives to the proposed action, and discussion of measures which could mitigate potential environmental harms. This is facilitated by gathering input from scientists, policymakers, and civil society to help identify activities that may cause harm to the environment. Public participation is also usually a crucial part of EIAs, including the opportunity for members of the public to comment on a proposed action and receive responses to their questions, and ultimately to review the final record reporting the results of the EIA. The overall objective of an EIA is to ensure that environmental considerations are explicitly addressed and incorporated into the decision making process prior to undertaking an action that may significantly affect the environment. EIAs in International Law EIAs have become tremendously important tools for environmental management across the globe. More than one hundred nations have domestic statutes that require consideration and assessment of the environmental impacts of domestic development activities to some degree. International treaties, customs, and decisions by international courts also require EIAs for activities that may cause environmental impacts across borders. The most definitive statement of this obligation came in the decision of the International Court of Justice (ICJ) in the Pulp Mills Case (Argentina v. Uruguay) where the court confirmed that “it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.” However, the international law is unsettled as to whether a similar requirement under customary international law exists to perform an EIA for proposed activities in areas beyond national jurisdiction, such as the high seas. Article 206 of the Law of the Sea Convention (LOSC) states that it is a requirement under the Convention that nations assess the potential effects of activities under their jurisdiction or control—including areas beyond national jurisdiction but subject to their control—that may cause “significant and harmful changes to the marine environment.” The Article states a fair amount of leeway in determining the significance of the harm (there must be “reasonable grounds” for believing that a project may harm the environment) and the degree to which they are required to respond (as far as practicable). The requirement to perform an EIA in Article 206 of the LOSC is binding for all 167 states that have joined the treaty. However, some nations have not yet ratified the treaty, including the United States. Article 206 may only apply to all nations if it is an accurate statement of customary international law, which many provisions of the LOSC are understood to be. The Biodiversity Beyond National Jurisdiction Treaty Negotiations Although still at the negotiation phase, the anticipated treaty on Biodiversity Beyond National Jurisdiction (BBNJ) would, if completed, have major implications for the requirement to perform EIAs in areas beyond national jurisdiction. The primary goal of the negotiations relating to EIAs is to operationalize the obligation in Article 206 of the LOSC. Included in this goal is the development of a global default framework to cover emerging activities in areas beyond national jurisdiction, including marine tourism, floating installations, and seismic testing. This global framework would also include thresholds for new activities that would require an EIA. Another significant objective being negotiated is how to address the cumulative impact of human activities in EIAs. This includes a discussion of the need for cross-sectoral assessments of conflicting activities such as fishing, seabed mining, and the laying of submarine cables. Arguably the most groundbreaking aim being considered in BBNJ negotiations is how to give content to the obligation to perform an EIA for activities in areas beyond national jurisdiction. This would include guidelines for how to conduct an EIA and standards against which the outcome of the EIA and the final decision to authorize an activity would be tested. Many prior agreements, including the LOSC, include the obligation to perform EIAs for activities in areas beyond national jurisdiction, but none spell out the content of this obligation or give details for how to conduct satisfactory EIAs. Giving content to the EIA obligation through the BBNJ treaty would be a significant achievement that would accomplish much more than merely recognizing the obligation as a part of international law. The development of a binding BBNJ agreement is a lengthy process, as negotiations have been ongoing since 2004. It is unclear what a final agreement will look like. In 2015, the United Nations General Assembly (UNGA) passed resolution 69/292 calling for the development of a legally binding UNCLOS implementing agreement on the conservation and sustainable use of BBNJ. To help prepare the draft text of that agreement and make recommendations to the UNGA on the substantive issues covered by the agreement, the UNGA established a Preparatory Committee for the development of a BBNJ agreement. The Preparatory Committee is expected to report back to the UNGA by the end of 2017. However, it is uncertain when an actual agreement would be concluded because there may still be substantive disagreement even at the time of the deadline, which would necessitate additional debate within the UNGA. Also unclear is how long it would take to implement the agreement if and when it is reached, as well as whether all countries would sign onto the agreement. Thus, in the meantime, it may be more practical to rely on other means besides an overarching international agreement to compel nations to perform EIAs for activities in areas beyond national jurisdiction.

By Ilya Akdemir April 14th, 1978, marks the date of mass protests in the Soviet Republic of Georgia, mainly in its capital Tbilisi, over Georgians’ linguistic rights. Sparked by the announcement of a draft Georgian Constitution which was to replace the 1937 Georgian Constitution, the protest quickly gained traction, particularly among Georgian students and the local intelligentsia. At the crux of the issue was Article 75 of the proposed Constitution, which made Russian the sole official language of the Georgian Soviet Republic, replacing Georgian language’s official state language status under the 1937 Georgian Constitution. As the protests grew, the local Georgian Communist Party boss, Eduard Shevardnadze – essentially the de-facto leader of Soviet Georgia – began supporting the protests. Such open defiance of the party line and virtual independence in the decision-making was traditionally not well-tolerated by the Soviet authorities in Moscow, as perhaps was best demonstrated by the 1968 Invasion of Czechoslovakia. This time however, a peaceful solution was achieved. Negotiating with the Soviet Government in Moscow, Shevarnadze – who went on to become the President of Georgia after the breakup of the Soviet Union in 1991 – was able to preserve Georgian language’s official status in the new Constitution as the sole state language, just as it was under the 1937 Georgian Constitution. The protests achieved their objective and the Soviet Government had to back down. This was perhaps the first time a people in the Soviet Union successfully stood up to preserve its linguistic rights. But to this day, the issue of linguistic rights remains largely controversial in the geographical area of what once was the Soviet Union, which makes the Georgian protests of 1978 both relevant and important from an international legal perspective. Indeed, issues regarding language often lie at the heart of the disputes between Russia and states that were once part of the Soviet Union or aligned with it. For instance, Russia’s 2014 intervention in Ukraine and the subsequent annexation of Crimea was justified in terms of Russian minority’s language rights – Yanukovych’s request for intervention, which was read by Russia’s representative at the Security Council Vitlaly Churkin, clearly states that “the people are being persecuted on the basis of their language and political beliefs.” Similarly, Russia’s relations with the Balkan states have often been overshadowed by issues language and culture, such as the controversy surrounding the World War II Soviet war memorial in Estonia’s capital Tallinn, or Latvia’s referendum which led to the rejection of Russian as the official language, despite a significant Russian minority. On the other hand, leaders of Baltic states have expressed fears that Russia might use language-based justifications to annex parts of Baltic states that are populated by Russian minorities as it did in Ukraine. Indeed, all these issues pose difficult international legal questions, from minority rights protection and their linguistic rights, to issues of war and intervention. The issues surrounding the 1978 Georgian demonstrations resonate to this day and demonstrate that language will remain an important factor in international law.

By Jackie Momah The use of alternative methods of funding for arbitral proceedings is not a new development. Organizations have previously used institutional loans, contingency fees and other methods of funding. However, the form of third party financing referred to in this context differs. This form deals with a scenario in which an arbitral proceeding has already been contemplated and a party (usually the claimant) then secures funding from a third party. In return the third party receives a share of the award given at the end of the proceedings if successful. The use of third-party funding (TPF), of this kind, to finance arbitral matters is a new development in the world of international arbitration. Although recent, this development has made a substantial and arguably permanent impact on international arbitration. In a private dispute settlement mechanism like arbitration, in which arbitrators are party appointed, some ethical and procedural red flags are raised with the involvement of TPF. This results from the need to prevent conflict of interest. As such, it comes as a surprise that this area of international arbitration is not adequately regulated. This therefore begs the question, as to whether this is a deliberate omission or merely a lack of oversight. As is characteristic of any new development in society, there is the issue of whether the law can develop at the same pace. This is necessary to better regulate these emerging sectors and avoid legal blunders. This has been evident in various legal sectors, most recently in the fast-paced world of technology, in which new developments are made and the law is left to play catch up once a problem presents itself. A window of opportunity has been opened for a scenario like this to occur in the world of arbitration due to the emergence of third party financing. This issue arises as a result of the need to prevent conflicts of interest in arbitral proceedings through the use of disclosure. A fundamental aspect of any arbitral proceeding is the need for the arbitrator to be independent of the parties involved in a dispute. A lack of independence, for obvious reasons, can compromise a claim and result in the annulment  of any award given. As such, in the best interest of all parties involved in a dispute, it is required for the arbitrators and the parties to disclose any potential conflict of interest that may exist. However, this requirement has not been extended to TPF. As the use of TPF in international arbitration has increased, so has the various individuals that play a part in these disputes. Previously, involvement was limited to the parties participating in a dispute and the arbitrators. At this level, with only these participants, disclosure is relatively straight forward. With the involvement of third-party financing and funders, another layer of potentially conflicting relationships is added to a dispute. Now, funding relationships extend to various funding institutions, specialized third party funders, hedge funds, investment banks and more. As such, there is the potential for party appointed arbitrators to have possibly biased relationships with these various funders. With this addition, one would expect the law to grow and accommodate their presence by tackling the substantially increased potential for a conflict of interest to occur. The law however has not done this, and surprisingly as it stands, there is no binding international requirement or framework to disclose the presence of third party funders in an arbitral proceeding. A space has therefore, been created for a conflict of interest to occur - one that could lead to the waste of time and resources, and also threaten the overall outcome of an arbitral proceeding. Aware of the threat presented by the involvement of TPF, the International Bar Association published its revised practice rules and guidelines for use in international arbitration. Its general standard 6a and 7b, tackle this issue. These guidelines essentially include the requirement to disclose the presence of third party funders. However, these guidelines are not binding and require the further implementation of domestic state law to compel such disclosure. In addition, the International Court of Arbitration has also weighed in on the issue.  However, it only requires arbitrators to consider disclosing such relationships as a potential conflict of interest. These measures, therefore, only skirt the issue, thus leaving the window for a conflict of interest ajar. As a result, arbitral tribunals are unable to deal with these conflicts ahead of time. International arbitration is therefore left to react to scenarios in which conflicts of interests present themselves. In the process, making the problems attributed to the lack of adequate regulation of TPF’s in this field, unavoidable. States such as Singapore and Hong Kong are aware of this threat and have taken steps to implement mandatory disclosure of TPF’s involved in an arbitral dispute. The threat posed by this potential conflict and the measures taken by other countries to deal with this, could arguably indicate a lack of international and domestic oversight in this area. It is however evident that some compelling reasons exist for the lack of regulation of TPF’s in international arbitration. These perspectives could suggest that the current climate for TPF in this field is a choice, as opposed to a lack of oversight. It has been recognized that requiring stricter regulations will open the doors to disclosure in a manner that could unfairly hurt a claim. Thus, it may be stated that greater regulation may lead to the need to disclose more than just the presence of a funder. Disclosure beyond this could be prejudicial to the party enlisting the help of a funder. Requiring a party to go into detail on whom their funder is and the particulars of their agreement could unfairly hurt their claim, and deter the future use of this financing mechanism. Additionally, mandatory disclosure would burden parties in a dispute with unnecessary and wasteful discovery. Further reasons include that the explicit and binding requirement for disclosure of TPF involvement in proceedings, runs the risk of unnecessary disqualifications of claims. These disqualifications are opposed to attempts made to decipher potentially difficult questions. These reasons were offered by some leading funding institutions in response to a recent proposal made to amend Local Rule 3-15. This proposal was made to the U.S. District Court for the Northern District of California. The proposal dealt with local litigation funding as opposed to third-party arbitration funding. However, it is arguable that decisions made in this field have the potential to impact TPF in arbitration. This proposal required the automatic disclosure of TPF arrangements in every civil case filed, by specifically including the words ‘litigation funders’. In response to this, various litigation and arbitration funding institutions such as Burford Capital and Bentham IMF expressed their disapproval of this amendment. After deliberating, in February, the court dropped the proposed language, only requiring disclosure in limited scenarios. Decisions such as this, and the industry views behind them may indicate that the lack of regulation of TPF regarding disclosure in international arbitration, may be the result of choice as opposed to oversight. In all, whether the result of choice or a lack of oversight, only time will tell if the world of International Arbitration will be forced to adequately adapt to these changes or remain in the reactive as opposed to proactive position in which it currently finds itself.

By Sara Birkenthal On April 7, 1906, The Algeciras Conference gave France and Spain control over Morocco. The Algeciras Conference took place in Algeciras, Spain from January 16 to April 7. The purpose of the Conference was to find a solution to the Moroccan Crisis of 1905, which arose after Germany tried to keep France from creating a protectorate over Morocco. The final Act of the Conference outlined a strategy for the organization of Morocco’s police force, and the formation of a State Bank of Morocco. Further, it established the right of Europeans to own land in the country, with taxes put toward public works projects. The Algeciras Conference may have “resolved” the crisis in Morocco, but it left the country a pawn in the European powers’ quest for land, resources, and cultural capital. Imperialism left Morocco both positive legacies in the form of the development of its transportation, communications, healthcare, and education sectors, and negative legacies, including large wealth disparities and high illiteracy rates. However, Morocco was not deprived of its personality in international law, according to an International Court of Justice statement, and thus remained a sovereign state.

By: Iosif Sorokin On April 1, 2001, a US reconnaissance aircraft carrying 24 crew members collided with a Chinese fighter jet above the South China Sea. The area where the collision took place is highly contested as it falls within China’s exclusive economic zone under the Law of the Sea Convention. China claims that this precludes other nations from conducting military operations within this area, but this has been contested by the US, which has performed numerous freedom of navigation operations in the South China Sea. Following the mid-air collision the Chinese pilot was able to eject from the cockpit, but his body was never found and he was declared dead. The collision caused the US aircraft to dive 14,000 feet and nearly invert before its pilot regained control and completed an emergency landing on the Chinese island of Hainan. The 24 member crew was held on a military installation on Hainan while US diplomats negotiated their release. As part of the negotiations, the US ambassador to China delivered a letter to the Chinese foreign minister stating that the US was “very sorry” for the death of the Chinese pilot and “very sorry” for entering China’s airspace and landing without verbal clearance. Although this lead to further disagreement over whether this amounted to an apology or merely an “expression of regret or sorrow,” the crew was ultimately freed after 10 days and the aircraft was returned several months later.

By: Lauren Kelly-Jones In December, in a fully-booked luxury hotel in the Austrian Alps, guests went to their doors and couldn’t open them. Something was wrong. In the middle of winter, beside the cold Turracher lake the computers went dark. It was the first weekend of ski season, and the entire door-key system of Romantik Seehotel Jägerwirt ( a 111-year-old hotel) had been taken down. Hackers demanded that the hotel hand over €1,500 (around $1,600, payable in bitcoin) to restore their systems. Because management felt as though they had no choice, they did so. Then – systems back up, doors unlocked – they went public, to warn others of the dangers of this kind of cybercrime: a modern twist on criminal blackmail. “Ransomware” is in itself not a new concept: in a typical scenario, an entity’s data is encrypted and made unavailable until a payment is made. For instance, in California in February 2016, a hospital was forced to pay $17,000 in bitcoin to free its computers of a hacker’s virus. And yet, the Seehotel Jägerwirt attack is seemingly the first report of ransomware involving a physical device of this scale: the “Ransomware of Things,” or “jackware.” This kind of ransomware has the potential to control connected, intelligent objects in the real world. The risks are all too obvious: AT&T has highlighted the concept of a smart car being hacked with its ignition or brakes remotely controlled; in 2015, a hacker claimed to have taken over a plane’s engine controls; in Finland last year, a DDoS attack halted heating in two buildings in the middle of winter. Martin Kleczynski, CEO of Malwarebytes, explained to WIRED Magazine that “my prediction going forward is that we’re not only going to see ransomware focused on data, we’ll see more ransomware focused on other ways to disrupt a business.” The growth of a thriving criminal infrastructure in cyberspace is an increasingly serious threat that reaches across geopolitical boundaries. As the sophistication of cybercrime increases, so should the urgency of international law’s approach. What is the Law? There is no single international framework for cybersecurity law, but there are multilateral efforts to address it, and a growing consensus that establishing such framework is a pressing obligation. Custom – a source of international law – requires general state practice that is performed out of a sense of legal obligation. According to an article in the Chicago Journal of International Law, international agreements like the Budapest Convention, the African Union Convention on Cybersecurity and Data Protection, and the various Association of Southeast Asian Nations working groups on cybercrime are evidence of opinio juris. Arguably, States are acting in the belief that they have an obligation to “enact and enforce cybercrime laws within their territories and to cooperate to prosecute and extradite cybercriminals.” At the Budapest Convention on Cybercrime (2001), the Council of Europe aimed to “pursue a common criminal policy aimed at the protection of society against cybercrime.” Signatories promised to adopt domestic legislation to establish procedures outlined in treaty, cooperate through mutual legal assistance, even if there were no more specific agreement, and to prosecute cybercrimes committed on their territory. The latter – an issue of safe haven, where perpetrators can commit crimes in one country while sitting in another – is critical to the need for international cooperation, as many cybercrimes are international in scope. A nonbinding U.N. General Assembly Resolution calls on States to “eliminate safe havens” for cybercriminals. But – can the Budapest Convention evolve to tackle new ransomware threats? Microsoft has called the Convention a “gold standard” that is looked to when crafting cybersecurity programs, but multiple countries (Brazil, China and India, etc.) are non-signatories, and there are calls that the treaty is insufficient. There is need for a new instrument. In its absence, some regions have taken things into their own hands. The African Union Convention on Cybersecurity and Data Protection (2014) was welcomed as a “landmark” initial step to create a legislative framework for cyber security and data protection in the African region. It addresses (1) electronic transactions, (2) personal data protection, and (3) cyber security and cybercrime. Under the convention, each nation would be required to develop a national cybersecurity strategy, and to pass cybercrime laws. In January 2016, the EU Parliament approved the EU Network and Information Security (NIS) Directive, which was designed to raise cybersecurity capabilities across EU member states. The directive aims to “increase cooperation between member states and lay down security obligations for operators of essential services and digital service providers.” In April 2016, the EU General Data Protection Regulation was adopted, which will “extend the scope of the EU data protection law to all foreign companies processing data of EU residents.” Any company that controls or processes the personal data of Europeans through the offering of goods and services – even if the company has no physical presence in Europe – will be impacted. Both compliance rules come into full effect in May 2018. In the United States, the Department of Homeland Security’s guidelines for securing “The Internet of Things” suggest implementing security at the design stage, constantly updating systems, and promoting transparency. They also make clear that a “splintered” set of standards and rules will compromise innovation and security. The need for a global, evolving, modern agreement to address cybersecurity and the growing international threat of the Ransomware of Things is very clear. For their part, Romantik Seehotel Jägerwirt have decided to take inspiration from their “great-grandfathers,” when they address cybersecurity in the wake of the attacks. When they renovate rooms, they will install old-school door locks and keys.

By Jiarui Wang On March 24, 1954, Hungary and the U.K. held a bilateral talk to resume the countries’ economic relations that had ended after a trade embargo since December 1950. The British government imposed the embargo after the Hungarian government refused to release a British businessman, Edgar Sanders, who was sentenced to thirteen years for espionage. Given Sanders’ involvement with the British intelligence agency and similar cases emerging in Hungary, the Sanders trial drew substantial attention from the British media. The British government faced pressure to negotiate the release of Sanders. The breakdown of the release negotiation eventually led to a trade embargo. Another factor that triggered the strained bilateral economic relations was Hungary’s nationalization of industrial enterprises in the late 1940s. The nationalization resulted in confiscation of British-owned plants operating in Hungary. Prior to the embargo, the U.K. kept its economic relations with Hungary despite the tense relations between the British and the Soviet governments during the Cold War. The annual British imports from Hungary stood at £6.8 million in 1949. Arguably, the embargo affected the Hungarian economy more than the British economy considering Hungary’s loss of the exports as an important source of national income compared to the relatively low impact to the U.K. for losing a trading partner of imported food. In August 1953, the Hungarian government freed Sanders by an act of clemency after he was jailed for three years. Subsequently, Hungary expressed interest to resume economic and financial relations with the U.K. The trade talk that began in March 1954 concluded in the signing of a trade agreement in July 1956. The agreement stipulated that Hungary could export up to £12 million worth of agricultural and industrial products. In addition, 6.5% of the trade revenues were to be used to compensate the former British owners of the estates and plants confiscated by the Hungarian government during nationalization and to settle Hungary’s sovereign debts. Today, after 63 years of this bilateral trade talk, the U.K. remains one of the largest trading partners of Hungary.

By Ilya Akdemir Recent developments regarding the legality of Russia’s intervention in Ukraine Was Russia’s 2014 intervention in Ukraine and the subsequent referendum on the status of Crimea illegal under international law? Many believe so. While Russia has traditionally viewed the intervention as legally justified, recent statements by the ousted President Yanukovych and high-ranking Russian officials seem to contradict this position. Russia’s legal justifications for the 2014 intervention in Ukraine The legal justifications for Russia’s intervention are based on the letter of the Head of State of Ukraine at the time, Viktor Yanukovych. Yanukovych requested Putin and Russia’s Federation Council “to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defense of the people of Ukraine.” The letter, which was revealed by Russia’s UN Security Council representative, Vitaly Churckin, also speaks of an impending humanitarian disaster. It states that “the events in [Ukraine] . . . have placed Ukraine on the brink of civil war” and that the “people are being persecuted on the basis of their language and political beliefs.” From the Russian perspective, the legal justifications for Russia’s military intervention are clear – Russia was invited by Ukraine’s legitimate and incumbent head of state to restore order and protect Russian-speaking minorities in Ukraine. Put simply, it’s a case of intervention by invitation. Intervention by invitation – defined by the Institut de Droit International as the “direct military assistance by the sending of armed forces by one state to another state upon the latter’s request” – can be seen as one of the few exceptions to the general prohibition on the use of force in international law. The key element of any intervention by invitation claim is the validity of the “request.” Questions regarding Yanukovych’s requesting letter have thus been framed in terms of Yanukovych’s legitimacy and status as the Head of State of Ukraine at the time of the request. In essence, the question is whether Yanukovych was a legitimate and incumbent head of state when he sent the letter requesting Russia’s assistance. If yes, his request justifies Russia’s intervention. If no, then Russia’s intervention is illegal under international law. As a result, lawyers on both sides of the argument have focused on the question of Yanukovych’s legitimacy and status at the time that the letter was being written. According to Putin, Yanukovych was a democratically elected president at the time of the request, legitimate and incumbent, and therefore Yanukovych’s request is legal. But recently, a sudden change occurred in the Russian narrative, which was noticed by Russian commentators but has largely been ignored elsewhere. Apparently, there was never any “request” at all. Recent statements from ex-Presient Viktor Yanukovych and Putin’s Press Secretary Dmitry Peskov On February 22nd, 2017, Yanukovych gave an interview to the Russian media in which he stated that he “never asked to send troops to Ukraine,” a substantial rift with the established narrative on the legality of the intervention. Furthermore, on March 9th, Yury Lutsenko, Prosecutor General of Ukraine, posted on his Facebook page an official letter he received from Russia’s Prosecutor General’s Office. The letter states that “any statement by Yanukovych requesting the use of the Armed Forces of the Russian Federation on the territory of Ukraine has not been received or considered by the President of the Russian Federation or the Federation Council.” On March 16th, Putin’s Press Secretary, Dmitry Peskov stated that “no letter was officially submitted to the Russian presidential administration, [and] no such letter was registered in the administration.” All these statements seem to point towards a change in Russia’s policy towards Ukraine. From an international legal perspective, however, the issue is also deserving of attention, as it gives rise to new questions regarding the legality of the 2014 Russian intervention. First, if there was no request from Yanukovych – as Mr. Yanukovych’s comments seem to suggest – then Russia’s legal justifications for intervention in Ukraine based on the intervention by invitation exception are more uncertain than ever. Second, if there really was no letter, what is the nature of the document Vitaly Churkin demonstrated at the UN? The minutes of the UN Security Council meeting clearly confirm that Churkin referred to the document as a “request” and “a letter [that] is signed by President Yanukovych.” Even if Russia’s officials didn’t view Yanukovych’s statement as a request for intervention, it is certain that Churkin tried to represent it as such. It is important to note that the issue is still in development. On March 17th, 2017, Russia’s Foreign Ministry Spokesperson, Maria Zakharova, authored a post on Facebook stating that although there was a signed statement (not a letter) from Mr. Yanukovych, it was simply not registered in the Presidential Administration or the Federation Council. Zakharova adds that “the statement was signed by the President of Ukraine, and read out to the UN Security Council as very revealing information about the situation in Ukraine, but no decisions were taken on it in the Presidential Administration or in the Federation Council of Russia.” If, however, no decisions were taken regarding the Yanukovych statement, the legal basis for the sending of troops to Crimea becomes less clear. Further, it is inaccurate to say that no decisions were taken based on the “letter.” On March 1st, 2014, at the peak of the crisis, Russia’s Federation Council voted to approve Putin’s request to use Russia’s armed forces on the territory of Ukraine. The minutes of the discussions surrounding the vote show that Yanukovych’s invitation, which was apparently received by the Federation Council just an hour before the vote, played an important role in the decision to approve Putin’s request to send troops. Churkin later revealed the letter in the UN on March 3, 2014, two days after this vote. March 16, 2017, marked the third year since Crimea voted to join Russia. Russia’s view regarding the legality of the intervention which resulted in the Crimean referendum has been relatively consistent throughout this period. However, novel developments, particularly statements from high-ranking Russian officials, pose new questions regarding the legality of the intervention. This could, indeed, all be just a big mistake on the part of Russian representatives. Or perhaps, as some Russian commentators have pointed out, it’s a sign of an upcoming change in Russia’s approach towards Ukraine. What is certain however, is that, from an international legal perspective, these recent developments add further doubts to Russia’s narrative regarding the legality of the 2014 intervention in Ukraine.

By: Maximilian Oehl In his recent documentary, filmmaker Adam Curtis translates the term hypernormalization, originally created by Berkeley anthropologist Alexei Yurchak to describe Soviet Union’s late society, into today’s world. In his 2006 book Everything was Forever, Until it was No More: The Last Soviet Generation, Yurchak argues that while nearly everyone in the 1980s Soviet Union realized the malfunctioning of the political and societal system, the population still maintained a pretense of its functioning. This is what Yurchak terms the hypernormalization of the status quo – accepting an artificial world created by citizens and politicians alike as real although they know about its ‘fakeness’. Curtis contends that decision-makers worldwide, overwhelmed by the complexity of global politics, have started to create an artificial, simpler version of the world over the past decades. This ‘fake’ world blinds out the complexity of the real one and thus allows us as citizens, who play along with the ‘game’, to live with the reassuring feeling of knowing what is ‘right’ and what is ‘wrong’. This blogpost visits Curtis’s assertion from the perspective of international law. Can we discern evidence for his hypothesis from the way that states and non-state actors are applying international law today, including the way it is referenced in the media and civil society? Does it, at least at times, help create the pretense of a global society functioning along well-defined, commonly accepted parameters? The hypernormalization of the international legal order The main configurations of the international legal order post-WWII are most prominently rooted in the Charter of the United Nations. Accordingly, the international legal system is founded, inter alia, on respect for human rights and fundamental freedoms, on the principle of sovereign equality of states, non-intervention and the non-use of force. Habitually, most governments will, whenever they are announcing a new foreign policy, in one way or the other broach its legal basis and naturally assume the legality of their action. Yet, what do we – as observers of global politics – presume to happen whenever an international actor finds a certain policy that she deems to be highly beneficial to her interests to be in violation of international law? The scope of this post does not allow for a deep dive into public policy decision-making. Yet, speaking from a legal perspective, one can distinguish roughly between worst and best case scenarios. In the worst case, actors would not take into account the legal dimension of the issue at all and pursue the policy in any case; in the best case, actors would shape their policy according to the legal requirements. Maintaining this legal perspective, the phenomenon of hypernormalization occurs whenever actors have secretly decided to ignore the law – in part or as a whole – yet are publicly pretending to respect it. (It can, vice versa, of course also occur when one actor falsely accuses another actor of violating the law – yet, for reasons of simplicity (sic!) we shall focus on the first scenario here; also, the lines between a deliberate decision to ignore the law and tricking oneself into believing in the legality of a desired policy may, of course, often be blurred). The ‘faking’ effect is vigorously increased where the general public – typically first the media – adopts the official position without thorough investigation of the corresponding reasoning and evidence (potentially forced to do so due to a lack of available official information). Examples of the hypernormalization of international law, unfortunately, are easy to find. Take Colin Powell’s ‘anthrax speech’ in front of the UN Security Council in which he attempted to justify the invasion of Iraq in 2003 by pointing to the purported existence of weapons of mass destruction, for instance. Or consider the twofold ‘rise and fall’ of Muammar al-Qaddafi of Libya selectively as ally or enemy of the Western world, which Curtis portrays in his film. Recent examples are sadly provided by the EU’s responses to the complexities caused by mass migration – be it the temporarily widespread practice to pushback refugee boats in the Mediterranean Sea or the readiness to cooperate with Omar al-Bashir of Sudan, a suspect notoriously warranted by the International Criminal Court for accounts of crimes against humanity and genocide among others. Why do we generally presume the legality of our governments’ actions? Now in view of government actions like this, it seems to be apparent to a broader public audience, if perhaps not the majority, that our governments do not (always) prioritize the legality of their actions. Their policies are so bluntly contrary to international law – despite their contentions to the contrary – that they strike the eyes of many. This is all the more so in times, in which we regularly learn about the involvement of government officials in shady dealings through leaked diplomatic cables or phone calls. So why do many of us, at least the ones that generally put their trust in humanity, – a priori – continue to assume that our governments would be respecting the law, that its motives are righteous, in spite of all its illegal actions that we have learnt of in the past? Are we, somewhat half-consciously, buying into the ‘game’ of hypernormalization because we prefer to live in a comforting world, in which our government is constantly fighting to protect human rights, to foster good governance and sustainable development? The dangers of hypernormalizing international law As international lawyers we see ourselves confronted with the task to operate in a system, which at times may seem artificial – even or especially to us ‘insiders’. A system, which, founded on human rights and the principle of non-violence, is now and then degraded to a mere onlooker, for instance when civil wars break out in Syria or when genocide is committed in Sudan. In this context, lawyers from different disciplines and others frequently tend to ask what all of these ambitious rules are really worth, if they are so rarely respected? While I do not see a reason to be generally pessimistic about the project of a rule-based system of international cooperation and certainly think that it merits to be defended, we should be aware of the disservice we are actually doing it whenever we hypernormalize international law. As Yurchak points out, hypernormalization in the Soviet Union occurred because the current system was presented as being without any alternative. Influenced by corresponding education and propaganda, almost no one could imagine a world without or outside socialism. Eventually, the entire system collapsed and was abolished – when the gap between reality and the pretended world became so enormous that people could not ignore it anymore. In the case of the Soviet Union, there was an alternative – one that no one would have ever dared to address: capitalism. And likewise, there also are alternatives to the current configurations of international law: the law of the strongest, unimpeded power politics, nationalism or protectionism. If we step into the trap of hypernormalizing international law, we risk jeopardizing the system of a rule-based framework for international cooperation as a whole. To my mind, the recent nationalist backlashes, which are, quite tellingly, also specifically directed against international law itself, are at least partly rooted in a sentiment of being fed up with a system that is being presented as the norm and without any alternatives despite all of its apparent deficiencies. The need to elucidate international law To my mind, instead of presenting the international legal framework as the inevitable status quo, we should consistently attempt to elucidate international law and especially its actual effects. Absent a vigorous implementation mechanism, law and reality can grow miles apart in this highly politicized field of ours and we should be as frank as possible about it. This requires us to always identify the dichotomy of ‘is’ and ‘ought’ in the clearest way possible. Such, in turn, will often entail greater emphasis on the factual side of the real-life scenarios we examine – instead of approaching a set of rules in an isolated manner. For instance, more routinely integrating political and economic analyses in our discussions of legal norms could provide us with valuable insights as to why what actor has violated which rule – and to thus identify the ‘weakest’ components of the international framework. Finally, we must of course continue to hold the violators of international law accountable. Yet, where our means may be insufficient to effectively enforce the law, where institutional mechanisms, ‘naming and shaming’ and any other available instruments are failing, we should be frank and honest about it. In other words, we should continue to be confident of the project of the international rule-based system, yet without pretending that such would at all times be the obvious thing to do.

By Maribeth Hunsinger The plan was simple: overthrow Fidel Castro. On March 17, 1960, President Eisenhower signed a National Security Council directive approving a Central Intelligence Agency (CIA) proposal for covert action against Castro’s regime. The execution of this proposal ultimately led to the failed Bay of Pigs invasion in 1961. The CIA proposal, known formally as “A Program of Covert Action Against the Castro Regime,” called for the development of a guerilla force comprised of Cuban refugees (“Operation 40”) and the training of a Cuban paramilitary force (“Alpha 66”). The plan also included the placement a covert intelligence organization within Cuba and the creation of a radio station to broadcast into Cuba. The roots of Castro’s regime trace back to General Fulgencio Batista’s 1952 coup against President Carlos Prio. Batista forced Prio into exile in the United States. Castro’s revolutionary 26th July Movement emerged in the vacuum and eventually succeeded in overthrowing Batista’s government in the Cuban Revolution of 1959. Although the Eisenhower administration expressed recognition of Castro’s government, it grew increasingly wary of Cuba. The revolutionary government strengthened diplomatic relations with the Soviet Union and allowed the Communist Party to operate freely within the country. Meanwhile, anticommunism took a “central position” in the Eisenhower administration. Amidst growing concerns that Cuba would eventually pose a threat to the U.S. if left unchecked, Eisenhower ended diplomatic relations and suspended trade with Cuba in 1961. John F. Kennedy succeeded Eisenhower as President of the United States, and under his leadership the CIA launched a “definitive strike” in April 1961. The Bay of Pigs invasion was disastrous for the U.S., as the 1,400 American-trained Cuban refugees were outnumbered and surrendered to Castro’s forces after less than 24 hours of fighting. U.S. efforts to overthrow Castro persisted, setting the stage for the Cuban Missile Crisis of 1962 that strained relations even further between the U.S., Cuba, and the Soviet Union. Tensions between the U.S. and Cuba have continued through multiple decades and administrations. In 2014, Barack Obama and Raul Castro announced intentions to reestablish diplomatic relations between the U.S. and Cuba. It remains to be seen where the dust will settle as steps continue to be made toward restoring political and economic interactions between the two countries.