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Meredith Sullivan (J.D. Candidate, Class of 2025) is a contributor. Her interests include human rights, tech policy, and international and comparative law. Meredith graduated from the Dual B.A. Program between Columbia University and Sciences Po with degrees in Political Science and holds an MPhil in Middle Eastern Studies from the University of Cambridge. Before law school, she worked as a paralegal at a legal aid organization, helping tenants in Massachusetts defend against eviction. Meredith speaks fluent French and proficient Arabic, Spanish, and German. In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito declared that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This decision held that there was no Constitutional right to abortion, overruling decades of precedent. This January would have been the fiftieth anniversary of Roe v. Wade, the landmark case that protected abortion (until viability) as a fundamental constitutional right. However, last year’s Dobbs decision returned the issue of abortion to the political process, giving states a carte blanche to impose any and all abortion restrictions (albeit with federal law mandating that doctors provide abortion in medical emergencies.) While the court has reversed course from a half century of American legal norms with the Dobbs decision, the battle over Roe and the right to abortion in the United States has not been waged in a vacuum. Despite many conservative justices’ stated reluctance to look beyond our borders and incorporate international law into their jurisprudence, global comparisons were an important undercurrent in the conservative analysis of the Dobbs case. Starting in the petition for writ of certiorari, the petitioners employed comparative legal analysis by referring to the laws of other countries to declare the United States as leading “the world in allowing nearly full developed children to be aborted.” Alito built on this in his majority opinion, discrediting Roe’s viability line as nonsensical and stating that it was “telling that other countries almost uniformly eschew such a line.” Chief Justice Roberts expanded on global comparisons in his concurrence, noting the small number of countries that permit elective abortions after viability. These viability arguments obscured the reality of abortion in other countries that have broad abortion exceptions and free healthcare, for example, in Europe. Interestingly, the petitioners and the Court took a comparative approach when contextualizing abortion laws in the United States, but neglected to mention human rights norms or international treaty obligations. However, these arguments emphasize the continued relevance of international and comparative law in the American debate on abortion. The United States plays a major role in articulating international human rights standards and itself has binding obligations under international law as a State Party to some treaties and a signatory to many other agreements. As we move into the post-Dobbs era, it is important to examine how the decision and subsequent abortion bans in many states interact with the United States’ commitments under international law. How do international legal norms apply to abortion in the United States? Since the 1994 International Conference on Population and Development in Cairo, there has been global consensus that reproductive health is a basic human right. The International Covenant on Civil and Political Rights (ICCPR) is a primary source of human rights, including the right to sexual and reproductive health. In the international law amicus briefs submitted in Dobbs, numerous scholars and practitioners argued that abortion was protected by the ICCPR under the rights to life, privacy, and non-discrimination. In 2018, the United Nations (UN) Human Rights Committee (HRC) found that Article 6 of the ICCPR, the protection of the “inherent right to life,” included the right to safe and legal abortion. Further, the HRC urged in General Comment No. 36 that as part of their obligations under Article 6, states should work to remove existing barriers to “effective access” of abortion care, and that they “should not introduce new barriers.” The HRC explicitly stated that states should not apply criminal sanctions to women or girls for having obtained an abortion or to medical providers for having assisted them. In addition to Article 6 of the ICCPR, advocates have argued that the right to abortion is protected by Article 17, the right to privacy. While a key part of Dobbs was dismissing abortion as a privacy right under substantive due process, that does not mean that international law cannot legitimately protect abortion under privacy rights. The assertion that abortion is included under the right to privacy is supported by multiple decisions of the HRC. The HRC first set this precedent in KL v. Peru (2002), declaring that Peru’s denial of abortion constituted an Article 17 violation. In both Whelan v. Ireland (2016) and in Mellet v. Ireland (2017) the Committee focused on the severe mental and emotional impact of denying abortion care and found that Ireland violated the women’s rights to freedom from cruel, inhuman or degrading treatment, privacy, and equality through its abortion ban. Although HRC decisions are not binding, they are considered reasonable interpretations of the treaty. The United States has only signed and ratified a handful of human rights treaties, notably including the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). While the US reservation to the ICCPR ensured that the treaty is not self-executing, in an effort to curtail domestic litigation for direct enforcement of the treaty, the United States is still bound by the ICCPR–on the federal, state, and local levels. Under the ICCPR, and taking into consideration the HRC’s General Comment Nо. 36, the United States has a positive obligation to ensure safe and legal abortion access. Тhe criminal penalties that have been enacted or are pending in bills in multiple states, for either pregnant people or medical providers, are also contrary to the HRC’s interpretation of Article 6. Further, interference with a person’s right to abortion constitutes a violation of privacy under Article 17, which implicates the half of states that have already or are expected to enact bans or gestational limits. There is also an argument that laws restricting abortion are discriminatory on the basis of sex and thus violate Articles 2 and 26 of the ICCPR. This is further advanced by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibiting “any distinction, exclusion or restriction” that impairs the ability of women to exercise “fundamental freedoms in the political, economic, social, cultural” fields. Article 12 of CEDAW urges states to take all measures to prohibit discrimination in health care and ensure access to health care, including family planning services. The CEDAW Committee made it clear in its General Recommendation No. 24 that access to reproductive healthcare was a basic right under the treaty. While sex discrimination arguments do not account for all potential abortion seekers, the right to access abortions is fairly entrenched within the sphere of non-discrimination. The United States signed, but has never ratified, CEDAW; thus, the treaty is not legally binding, but under customary international law, the United States must refrain from defeating its object and purpose. Now that there is no Constitutional protection for abortion, the United States undoubtedly contravenes the object and purpose of a treaty meant to expand abortion and reproductive health care as a basic right to achieve gender equality. Non-discrimination arguments for abortion access start but do not end with sex discrimination. Under ICERD, Article 5(e)(iv) calls upon State Parties, like the United States, to eliminate racial discrimination and to guarantee the right of everyone to public health and medical care. The 2018 Report of the Special Rapporteur on extreme poverty and human rights acknowledged the unacceptable disparities in maternal mortality between white women and Black women in the United States and the persistence of racial discrimination in reproductive healthcare. Abortion access is a racial justice issue because certain individuals–Black, Indigenous, Latinx, and other people of color–are more significantly impacted by abortion bans. Due to the disparate impact of Dobbs, the United States is violating its international obligations to actively work to eliminate racial inequities and discrimination. Additionally, the UN Mandate Holders Amicus Brief discussed the intersectional implications of abortion bans; for example, prohibitions on abortion will severely impact low-income and disabled individuals and people living in rural areas. These disparate acts on certain individuals violate non-discrimination provisions of ICCPR’s Articles 2 and 26. Finally, the nascent principle of non-retrogression underscores efforts to advance human rights on the international level and hold states to their obligations. Originating in a General Comment of the Committee on Economic, Social and Cultural Rights (CESCR), this doctrine prohibits states from regressing in their protection of human rights. This emerging principle has found increasing traction in international environmental law in the past few years and stems from concern over backsliding and states non-compliance. While the United States is only a signatory to the International Covenant (ICESCR), it still cannot act in contradiction to the treaty’s purpose and object of taking positive measures to promote human rights, implicating the principle of non-retrogression. This concept is further compatible with the emphasis on positive obligations in many human rights treaties, requiring that states make good faith efforts to comply and advance the rights therein. With 13 states having fully banned abortion since Dobbs, the United States has taken a huge step back in terms of human rights progress compared to 49 years of some degree of abortion access. While the doctrine of non-retrogression is an emerging norm, it seems applicable here, especially given the intersection of abortion access (or lack thereof) with gender, race, socioeconomic status, educational attainment, disability, and public health. Thanks to Dobbs, the United States has stepped half a century back in time. For a country that has long conditioned economic aid to foreign countries on human rights metrics, this domestic backsliding is both alarming and hypocritical. The positive obligations of treaties like the ICCPR and ICERD make the current state of abortion regulations in the United States unacceptable and in flagrant violation of international law. The repercussions of reduced or unsafe abortion access infringe on other basic rights protected by the ICESCR, to which the United States is a signatory, like rights to health and education. International legal scholars and human rights organizations have also made compelling arguments that unsafe abortion constitutes cruel and inhumane treatment, which were affirmed in the aforementioned HRC decisions. However, the U.S. Reservation to the ICCPR narrowly defines cruel and inhumane treatment as limited to that prohibited by the Fifth, Eighth and Fourteenth Amendments, which makes it a less salient argument in the domestic context. Conclusion Since the early 1990s, only four countries have regressed in terms of abortion laws: Nicaragua, El Salvador, Poland, and the United States. While the Supreme Court has now actually made the United States an outlier in terms of denying pregnant people access to essential medical care, the federal government is still bound by its international obligations. By allowing states to prohibit abortion, the United States is in direct contravention of ratified treaties, like the ICCPR, and acting contrary to the object and purpose of signed treaties, like CEDAW. Further, this backsliding in abortion access constitutes a violation of the principle of non-retrogression and sets a dismal example for other countries with more nascent abortion movements. Abortion access is firmly posited as a human right in international law and by UN agencies and international treaty bodies. As we navigate increased bans on abortion and procedures across the country, comparative law and activism will perhaps be instructive; the ongoing criminal prosecution of a Polish activist for helping a pregnant woman access abortion pills is a somber example of what will happen in states where abortion is criminalized and medical providers or “abettors” are also penalized. In a post-Roe United States, international pressure and advocacy framed in terms of binding international legal obligations and human rights norms will be one potential way forward.

Lessons Learned from the Anwar R. Prosecution in Germany Spencer M. Perry (JD '23) is a Berkeley Law student pursuing a career in international criminal law as a federal prosecutor. Before law school, Spencer worked on foreign affairs and criminal justice issues in the Obama White House and the office of then-Senator Kamala D. Harris. Spencer began his career advocating for same-sex marriage rights in California. Trigger warning: this blog post contains descriptions of extreme violence, sexual violence, and atrocity. The Arab Spring reached Syria at the end of 2010. Protesters called for diversification in government and economic empowerment. Demonstrations reached a fever pitch in mid-March 2011 prompting a bloody crackdown. Protests were quelled with tear gas and live munitions. Protesters were suppressed, killed, or jailed in detention facilities controlled by a diverse constellation of law enforcement agencies. Branch 251 was one such prison. Sexual violence at Branch 251 was routine. Detained protestors were stripped naked in interrogations, sexually mutilated, and raped. Some detainees were impregnated by captors. Some sought surgery to care for internal wounds or abort their rapists’ children. Detainees that weren’t killed suffered social ostracization upon release. Sexual violence in conflict is a cruel weapon of fear, humiliation, and violence. Syrian forces have and continue to wield sexual violence against civilians and noncombatant detainees to quell and deter civil resistance to the Assad Regime. The international community has struggled to address Syrian aggression. But national governments have found success in affirmative prosecutions of Syrian war criminals under universal jurisdiction. On January 13, 2022, Anwar Raslan was convicted of torture and sexual abuse of Syrian prisoners in Germany. Raslan was accused of overseeing the torture of detainees at “Branch 251,” the General Intelligence Directorate’s (GID) Intelligence Section detention facility in Damascus. He was convicted of crimes against humanity including sexual violence crimes. Swedish prosecutors are in the midst of a similar effort. In February 2019, nine torture survivors in Sweden brought a criminal complaint against at least 25 senior Syrian intelligence officials for crimes against humanity. The plaintiffs were arrested during a peaceful anti-Assad demonstration in 2011. They were jailed and tortured in 15 different detention centers across the country run by Syrian intelligence services. Their abuse included battery, sexual assault, electrocution, and sleep deprivation. War crimes prosecutions are inherently fraught and the challenges to charging sexual violence as a war crime are especially arduous; victim witnesses alleging sexual violence face internalized and societal shame, and prosecutors sometimes face an unsympathetic or misinformed judiciary. Prosecutors may opt for more predictable charges, leading critics to cite a “persistent impunity for conflict-related sexual violence.” Germany’s rare success in holding Raslan accountable for sexual violence as a crime against humanity may serve as a model for the Swedish prosecution. This paper analyzes the German prosecution (see infra Part I) and Swedish complaints (see infra Part II), details the German prosecution’s successes and missteps (see infra Part III), and recommends actions to maximize chances of conviction in Sweden (see infra Part IV). I. The Successful German Prosecution of Anwar Raslan Anwar Raslan led the GID Investigations Section from April 2011 until September 2012. The GID helped lead suppression efforts against anti-government protests and rebel militias. The GID employed force, arrests, detention, torture, and extrajudicial executions to execute their mandate. Among other duties, Raslan oversaw operations at Branch 251. In the Fall of 2011, Raslan dispersed an anti-government demonstration in Douma, arrested demonstrators, and transported them to Branch 251. Raslan defected in December 2012 and entered Germany as a political asylum seeker in June 2014. He came to criticize the Assad regime and gained modest notoriety among Syrian diasporas. In February 2019, Raslan and an associate were arrested in Germany after Raslan noted their work at Branch 251 to authorities during an unrelated dispute with a neighbor. His statement came to the attention of a joining German-French investigation team (JIT) supported by Eurojust and the Genocide Network. JIT was established in 2018 to support national governments in investigating, apprehending, and prosecuting Syrian war criminals. Specialized German war crimes prosecutors alleged that Raslan ordered and commanded the systematic torture of at least 4,000 prisoners in his pursuit of opposition intelligence, causing the deaths of at least 58 prisoners. Raslan was charged with crimes against humanity including 58 counts of murder, one count of rape, and one count of aggravated sexual assault. The charges were brought under universal jurisdiction and Germany’s legal framework for war crimes. Originally, Anwar R.’s acts of sexual violence were not charged under the German implementation of the Rome Statute but under the general German criminal code. German prosecutors later updated their charges to include sexual violence charges in the German code for crimes against humanity in response to criticism. The trial against Raslan and his associate began on April 23, 2020. It was the first to hear charges brought for torture during the Syrian Civil War. The prosecution was supported in part by the testimonies of victim-witnesses, several of whom identified Raslan on sight. Several reported sexual abuse and rape at the hands of Raslan’s subordinates. The resultant stigma followed these particular victims; they reported social ostracization and violence related to their sexual abuse after release. On January 13, 2022, Anwar R. was convicted of crimes against humanity, including the murder, torture, and sexual abuse of Syrian prisoners. The court found that Raslan was culpable as an accomplice because he was plainly aware of the torture program implemented by his inferior officers, used coded language to order torture, and acted intentionally. Raslan was sentenced to life in prison with the possibility of parole. The trial was criticized for further placing victim witnesses at risk. Critics highlighted inadequate witness protection, insufficient community outreach, absent translation services, and failure to record proceedings. Critics cited the prosecution’s failure to prosecute “sexualized violence against women, men, children, and lesbian, gay, bisexual, transgender, queer, and intersexed community (LGBTQI) persons.” Nonetheless, Anwar Raslan’s conviction is a rare example where sexual violence during an armed conflict was charged and proven as a standalone offense under international criminal law and not as a form of torture. II. Nine Syrian Survivor Complainants in Sweden In February 2019, nine unnamed Syrian torture survivors gave witness evidence to the Swedish War Crimes investigations and prosecutions unit. They alleged that they were arrested, jailed in 15 detention centers across the country run by Syrian intelligence services, and tortured. The alleged abuse included battery, sexual assault, electrocution, and sleep deprivation. The survivors named 25 perpetrators and described several unnamed perpetrators. They alleged crimes including genocide, illegal abduction, torture, degrading treatment, rape, and severe bodily injury. Two survivors’ accounts are particularly relevant. Survivor 5 asserted that he was detained at Branch 251 from May 2011 to July 2011 and from December 2012 until early 2014, the same Branch overseen by Anwar Raslan between April 2011 and September 2012. Survivor 8 was held at other detention sites for two months in November 2012 where she was subjected to torture and sexual violence. In May 2019, four of the nine gave witness evidence and six offered to give testimony at future trials. They urged Swedish officials to lodge charges against and pursue the arrests of 25 named and some unnamed perpetrators. Their criminal complaint and testimony have yet to yield an incitement. Sweden’s investigative resources are structured like those leveraged by French and German authorities to pursue Raslan. Sweden and France established a JIT under EuroJust to investigate and prosecute Syrian war criminals. The Genocide Network Secretariat and UNITAD support their efforts. Sweden’s universal jurisdiction statutes broaden its capacity to fulfill complainants’ request and charge sexual violence as a war crime or crime against humanity. Sweden mirrored the Rome Statute in enacting its crimes against humanity statute in 2001 and its war crimes statute in 2014. The Act of 2014 in particular “is substantially broader in its scope” than the Rome Statute’s war crimes provisions because the Act of 2014 “does not require the existence of an armed conflict nor genocide, but rather a widespread attack on a civilian population” for its subsidiary offenses to be charged. Like the Rome Statute, the Act of 2014’s section concerning genocide includes three international crimes, two of which may apply to sexual violence. The second provision criminalizes serious harm or suffering against an enumerated group, which can include rape and other forms of sexual violence. The third criminalizes specific gender-based violence including sexual mutilation, forced sterilization, forced birth control, separation of sexes, and marriage prohibitions. The Act of 2014’s second section includes crimes for slavery, rape, forced prostitution, forced pregnancy, and gender-based persecution. Unlike the Rome Statute, this section defines rape according to the ICC’s nonbinding Elements of Crimes, ICTY caselaw, and ICTR caselaw. The second section also reaches beyond the Rome Statute in its inclusion and interpretation of sexual violence of “comparable gravity.” While the Rome Statute and related preparatory works contemplate such offenses as akin to battery, the Swedish statute references the ICTR’s Akayesu case where the charge was satisfied by extreme humiliation including forced nudity. The Act of 2014’s third section addressing war crimes aligns with the Rome Statute. It includes crimes against severe gender-based human rights violations in connection to armed conflict, which can include sexual violence, sexual slavery, degrading treatment (such as forced nudity), and sexual torture. The Act of 2014 emphasizes that when both it and other domestic crimes apply to a conduct, the conduct should be charged under the Act of 2014. Courts may observe precedents set by foreign courts (and ad hoc tribunals) in deliberating over conduct charged under the Act of 2014. Overall, the Act of 2014 “constitutes a significant development of gender-based crimes by explicitly prohibiting” specific acts of sexual violence. Should Swedish authorities announce prosecutions related to the 2019 criminal complaint filed by Syrian survivors, prosecutors may look to the precedent set in the case against Anwar R. and apply it to their statutes. III. Analysis of Factual, Statutory, and Procedural Disparities Between the Anwar R. Potential Swedish Prosecutions While similar procedures and victims’ rights protections indicate that a Swedish prosecution will match German success, the broader set of facts presented by the Swedish complainants and limited chargeable statutes undermine prosecutorial prospects. This section analyzes how different factual (see infra Part III.A.), statutory (see infra Part III.B.), and procedural circumstances (see infra Part III.C.) enable and disable the Swedish prosecution of sexual violence in Syrian detention facilities as an international crime relative to the successful Anwar R. prosecution in Germany. A. Swedish Complainants’ Broader Factual Record Undermines Prosecution The facts presented in the Anwar R. case and the criminal complaints before Swedish authorities bear striking similarities. First, the conduct alleged in the Swedish complaints took place during or shortly after Raslan’s tenure at GID. Second, both Anwar R. and the Swedish complaints concern abuses at GID civilian detention sites. One Swedish survivor was detained at Branch 251, Raslan’s bailiwick. Third and finally, the conduct alleged by survivors in Sweden matches the scheme in which Raslan participated. Raslan’s torture program “included beatings with fists and various objects, inflicting electric shocks, suspending victims from the ceiling by their wrists, sleep deprivation,” threatening detainees’ families, and “at least one case of rape and sexual assault.”; survivors recount regular beatings with fists and objects, electrocution, suspension in stress positions, and at least one instance of sexual violence. But the similarities between the courses of conduct at issue in Germany and Sweden end there. Whereas Raslan’s charged conduct was specifically cabined within GID’s operations at Branch 251, Swedish criminal complainants also detail abuse at seven or more other facilities overseen by four agencies (including GID). Most importantly, the single instance of sexual violence alleged by Swedish survivors occurred in another facility overseen by another agency approximately two or three months after Anwar Raslan left his commission. The advantages of prosecuting a similar pattern of abuse are tempered by the incongruities in space, time, and agency responsibility between alleged facts in Anwar R. and the Swedish complaints. The German precedent’s similar abuse pattern presents circumstantial evidence that government forces employ a systematic, interagency torture program and direct evidence that the torture program was employed at GID facilities, including Branch 251. But the German Court did not conclude that the Syrian torture program was implemented across agencies or by a national authority. Should Swedish prosecutors pursue conduct beyond that alleged in Branch 251, they will find the German precedent merely persuasive and circumstantial, if admissible at all. Practically speaking, the strategy decision may be at the mercy of investigators’ success in apprehending defendants. A high-ranking official may be held liable for a broad torture campaign, but an agency- or site-specific perpetrator may only face evidence tied to those affiliations. Given the opportunity to bring all their evidence to bear, Swedish prosecutors may nonetheless find limited support from the Anwar R. record given comparative factual incongruities. B. Swedish Legislative History Limits Potential Charges Both German and Swedish statutes provide ample basis for charging sexual violence in Syria as a war crime or crime against humanity under universal jurisdiction. Both Sweden and Germany retain domestic statutes implementing the Rome Statute. Both incorporate the various modes of liability typical in international criminal law, including command responsibility. Both retain substitute domestic criminal statutes chargeable in place of war crimes, such as statutes criminalizing terrorist organization affiliation. Neither country requires party linkages to their countries to exercise universal jurisdiction (though German law allows prosecutors to exercise discretion to forego prosecution when no party or victim is German). And crimes against humanity and war crimes do not face statutes of limitations in Germany or Sweden. While German and Swedish statutes’ facial similarity invites the conclusion that they equally support war crimes prosecutions, their war crimes statutes’ disparate enactment dates present a substantial challenge. Sweden’s failure to criminalize war crimes until 2014 demands that prior chargeable conduct be charged under then-existing statute, such as its crimes against humanity statute. Under both Swedish statute and the general principle of nullum crimen sine lege, individuals cannot be charged for conduct that was not illegal at the time the conduct was committed. Sweden’s inability to pursue war crimes charges is a severe limitation that devalues any prosecution brought by the Swedish complainants. But Sweden may be able to charge the alleged conduct as a war crime despite lacking a war crimes statute when the conduct occurred. Criminal charges may be brought under customary international law even when the conduct was not yet criminalized by statute. This is to say that a state can charge customary international law crimes, including war crimes, for conduct that offended customary international law when the conduct was committed despite the contemporaneous absence of an express statute to the same effect. Moreover, universal jurisdiction may be exercised to prosecute crimes under customary international law. But stretching universal jurisdiction to prosecute beyond what is express statute is unrecognized by some states and criticized by others as dangerous. Customary international law is definitionally malleable and may be ripe for prosecutorial overreach. But the prospect remains that this untested strategy has been acknowledged and, to at least one international criminal tribunal’s eyes, is an avenue open to the discretion of national governments. C. Similar Procedural Flexibility Supports the Swedish Prosecution Procedural similarities between the Anwar R. trial and a potential Swedish prosecution are near total. Both German and Swedish authorities have dedicated war crimes units investigating crimes in Syria. German courts permitted the prosecutors to present a robust record substantiated over approximately 50 days of trial, by the testimonies by survivors, insiders, and experts, and by physical evidence chiefly distilled from the Caesar Files. Similarly, the Swedish survivors’ criminal complaints rely on their own accounts and physical evidence produced in the Caesar Files. Each of those evidentiary forms are admissible and commonplace in Swedish universal jurisdiction prosecutions; indeed, Swedish prosecutors need only authenticate relevant open-source material to admit it at trial and, like Germany, Swedish victims’ rights present ample opportunity for survivors to testify. Finally and most fundamentally, Sweden’s obligations under the 1970 European Convention on the International Validity of Criminal Judgments all but require it to observe the Raslan findings. Sweden’s statutory and precedential bases for admitting diverse evidence in a war crimes prosecution are similar, if somewhat broader, than those in Germany. Those broad bases provide prosecutors greater strategic latitude, a necessary ingredient for any successful prosecution. IV. Conclusion and Recommendations Swedish prosecutors face significant strategic challenges compared to their German counterparts. The factual accounts presented by criminal complainants cover a regime-wide torture system while witnesses to crimes prosecuted in Germany attested only to conduct in Branch 251. Sweden’s delayed enactment of a war crimes statute prevents addressing alleged conduct as a war crime, thereby limiting the opportunity to earn landmark findings concerning the Assad Regime’s actions during the Arab Spring, while German authorities had (but forewent) the opportunity to pursue that conclusion. But those limitations are eclipsed by a robust record and supportive witness protection scheme. Swedish prosecutors can rely on the Caesar Files, witness accounts, open-source information, and the German court’s findings to support broad prosecutions or piecemeal, defendant-specific cases. That flexibility is a compelling, necessary boon in an impugned area of international criminal law. Against competing incentives, Anwar R. stands as a guide to Swedish prosecutors. Anwar R. illustrates that sexual violence can be proven as a standalone charge and need not be lumped into a broader torture charge. Regardless of the outcome, charging sexual violence gives greater meaning to the specific wrong committed by the accused and a greater voice to survivors. As perpetrators become available to Swedish prosecutors, they must seek sexual violence charges wherever appropriate and substantiated. Affirmative prosecution of sexual violence stands for the principle that survivors’ unique trauma will not be lost for the sake of expedience and that we can one day ensure that the body of international criminal law wholly recognizes sexual violence as a systemic threat to our collective humanity.

Shivani Dewalla is a guest contributor to Travaux. She is currently an LL.M. candidate at the University of California, Berkeley, School of Law and a member of the Berkeley Journal of International Law's symposium team. Why is a specific international treaty to protect the rights of the transgender community needed? Furthermore, why does the dearth of such agreements pose a problem for the applicability of international human rights standards and deny the extension of domestic penal laws in the absence of inclusivity? A section of the population born in a supposedly free world is persecuted, abandoned by their families, denied equal opportunity, and discriminated against in every walk of life solely because of how they identify themselves. Though several countries have passed laws regarding this subject, an absence of a binding international treaty leaves it to individual state authorities to conform to non-binding statutory norms. For instance, the resolution adopted by the United Nations Human Rights Council on June 30, 2016, to extend protection against violence based on gender identity and sexual orientation does not serve its intended purpose. Adopted by a close margin of 23-18, in addition to six abstentions, the resolution is indicative of the reluctance of countries that think that universal human rights do not include the rights of transgender people. Additionally, the non-binding nature of the resolution does not obligate states to ratify their domestic laws. This limits the resolution and its vision to mere paperwork. Finally, the resolutions have blurred the lines of sexual orientation and gender identity, which has resulted in the former overshadowing the latter. A dedicated treaty would do justice for transgender people facing discrimination in every country. It is therefore imperative that the articles of the Universal Declaration of Human Rights and International Covenant of Civil and Political Rights mandate universal transgender rights. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse. An international treaty is necessary to make extension of rights imperative and not a subject of interpretation. The presence of an international treaty would make transgender freedoms an integral part of global human rights precedent and ensure the proper application and extension of domestic civil liberties to trangender individuals. For instance, most penal codes of countries are binary in nature, as they define a person as a man or woman. This has led to a lack of protection of the transgender population for crimes like rape and harassment, which are codified with a gendered lens. Using international treaties to expand the definition of a person beyond the traditional binary would ensure the effective implementation of laws and extend their protection to persons who do not conform to binary gender norms. Furthermore, ratifying a treaty on an international level would compel states to extend social security schemes with a count of the transgender population in the national census indicative of their ratio in society. A formal agreement would also help create specific laws that would act as a deterrent against those who choose to abandon them. This would lead to a change in binary education systems, reduce instances of discrimination in employment based on gender identification, ease the system to own property or open bank accounts (which are too often restricted to people identifying themselves as men or women) and extend the benefit of healthcare systems to those who do not tick the traditionally binary gender boxes assigned at birth. In a free world, the transgender population should have the right to choose a partner, start a family, and not be tortured or subjected to violence. Adoption and ratification of a transgender rights treaty at the international level would ensure the awareness that this issue deserves. In turn, this would foster social inclusion and acceptance on the domestic level.

David Enrique Garzón Garcia is an LL.M. candidate at the University of California, Berkeley, School of Law and a guest contributor to Travaux. The history of the fundamental right to die with dignity (RDD) in Colombia has not been peaceful. In addition to the inertia of Congress to pass legislation to regulate this right, there have been heated social, media, religious, and constitutional debates, even within the Constitutional Court (CC) itself. In 1997, the CC held in Ruling C-239 that: “The fundamental right to live in a dignified manner implies the right to die with dignity...condemning a person to prolong his existence for a short time, when he does not wish it and suffers deep afflictions, is equivalent...to an annulment of his dignity and autonomy as a moral subject.” Since then, the CC has analyzed aspects of the RDD several times and has developed its meaning. In 2014, the CC, in its Ruling T-970/14, determined that, while Congress regulated the matter, the Ministry of Health and Social Protection (MHSP) should establish a procedure to carry out patients’ decisions on euthanasia. The MHSP then issued Resolution 1216 of 2015, in which it introduced the ordained procedure and limited it to adults. It is worth stating that neither Ruling T-970/14 nor C-239/97 provided this limitation. In this context, in 2017 the CC reviewed a tutela file on the matter. In Colombia, the tutela is a constitutional action that enables any person who considers that their fundamental rights are being violated or threatened to request immediate judicial protection. The tutela action is the procedural vehicle to activate concrete judicial review. The Colombian judicial review model entrusts the CC with discretionary review of tutela rulings issued by judges throughout the country to unify jurisprudential standards. In this tutela file, the plaintiffs were the parents of a 13-year-old adolescent who suffered from severe illnesses and had physical and intellectual disabilities. They requested the application of euthanasia. At the time the ruling was pronounced, the child had already died. However, the CC decided to recognize that children were also holders of the RDD. The ruling provided two criteria for the viability of the procedure, which were: (i) the condition of terminal illness, understood as a terminal illness that produces intense pain and suffering and the incompatibility of these with dignity, and (ii) the free, informed, and unequivocal consent of the patient, with the exceptional possibility of substitute consent due to the factual impossibility of direct manifestation, caused by the disease or by the cognitive development of the child. In this regard, it ordered the MHSP to ensure hospitals had committees to study requests for the euthanasia of children. Resolution 825/18 of the MHSP, issued in compliance with this ruling, established the procedure to give effect to the children’s RDD through euthanasia. In broad terms, this Resolution includes a differential approach concerning age and cognitive development. Throughout the Resolution, it is evident the MHSP’s primary purpose is corroborating, through different steps and differential mechanisms for each child's situation, that the decision is (i) voluntary, free, informed, and unequivocal and (ii) in concurrence with the child’s ability to communicate the decision, to understand, to reason, and to make judgments. However, Article 3 of Resolution 825/18 excluded children with intellectual disabilities (CID). It is relevant to note that the CC’s decision does not order, suggest, or contemplate this exclusion. That is to say, the MHSP took this decision without normative support and contrary to the constitutional framework and the rights of CID. Additionally, the preamble of the resolution does not provide any explanation of this exclusion. In other words, the remedy adopted by the CC and developed by the MHSP to avoid further violations of the right of children to die with dignity is insufficient for CID under the current procedure. As a result, the exclusion generates a discriminatory practice against CID and violates the equal protection and non-discrimination clause of the Colombian Constitution. The equal protection and non-discrimination clause is contained in Article 13 of the Colombian Constitution of 1991 and has different dimensions. From a deontic perspective, the following elements arise from the clause. First, it establishes the principle of equal treatment and protection of individuals by the authorities and in the enjoyment and exercise of rights, freedoms, and opportunities. Second, it prohibits discrimination based on sex, race, national or family origin, language, religion, or political or philosophical opinion. In different rulings, the Constitutional Court has stated that the specific enumeration of those categories is not to be understood as exhaustive, but enunciation. In that sense, disabilities are to be understood as one of the suspect categories covered by the clause. Third, it explicitly makes a preference for a material sense of equality above a formal conception. Fourth, it contains a mandate for adopting affirmative actions in favor of discriminated or marginalized groups. Fifth, it establishes the State’s duty of special protection towards individuals in a situation of manifest weakness and orders the punishment of abuses or mistreatment committed against these individuals. Concerning the second element, this provision must be understood following other human rights international instruments. Within the Colombian constitutional model, international human rights covenants signed by Colombia have constitutional weight and extend the anti-discrimination protection beyond the strict text of the Constitution. For instance, Article 26 of the International Covenant on Civil and Political Rights, of which Colombia is a party, prohibits all discrimination, including that derived from any social condition. In accordance, the CC in Ruling T-297 of 2013, stated: “Such criteria to which the constitutional norm alludes (Art. 13 C.P.), are not exhaustive categories, in such a way that any arbitrary differentiation for any reason or social condition is generally prohibited.” Consequently, the exclusion breaks the principle of equal treatment and protection and discriminates against CIDs on the ground of a suspect category. It disregards, as well, international treaties. Specifically, Articles 3, 4, 5, 6, and 25 of the Convention on the Rights of Persons with Disabilities (CRPD) proscribe discrimination on the grounds of disability. The social model of disability animates CRPD. According to Argentinian professor, lawyer, expert, and advocate for the rights of people with disabilities, Agustina Palacios, this model is based on two fundamental assumptions. The first is related to the fact that disability is not caused by "religious or scientific causes, but by social or at least predominantly social causes," understanding these as the limitations imposed by society on the person with a disability to have his or her needs met and to participate fully. The second is that "people with disabilities have much to contribute to society." In Palacios's words: "This means that—beyond people's functional diversities—disability is the result of a society that is not prepared or designed to meet the needs of everyone, but only of certain people, who, coincidentally, are considered standard persons.'' Regarding the social model of disability, Palacios states: “...the social model argues that every person, regardless of the nature or complexity of their functional diversity, should be able to make decisions that affect their development as a moral subject, and should therefore be allowed to make such decisions.” It is then imperative to eliminate the prima facie exclusion of CID from the procedure for requesting euthanasia. Exclusion is incompatible with the fact that in the universe of intellectual disabilities, there are different experiences of disability in which each case differs from the others. Automatic exclusion of CID implies applying a unique standard that may leave children with mild intellectual disabilities that do not affect their decision-making capacity in a deficit of protection. It is necessary, in terms of respect for fundamental rights, to allow these CIDs to submit the request under equal conditions and under a decision support system, with the corresponding reasonable accommodations. The adoption of reasonable accommodations in the framework of decision support systems in each case, designed to cover the necessities of each CID, would comply with the constitutional duty to ”promote the conditions so that equality may be real and effective.” Under no scenario does it mean support of a eugenic approach. On the contrary, this position advocates for a human rights approach in which the CIDs’ moral agency and decision-making capacity will be recognized and respected. CIDs with terminal illnesses, who are in great suffering and have autonomous decisionmaking possibilities, should have the same opportunities to access euthanasia as other children in that situation. Lege ferenda, it is urgent to eliminate the exclusion. For that purpose, different routes could be used. The first, which involves a greater degree of democratic deliberation, would be for Congress to pass a bill that regulates the fundamental RDD, including CID. However, this option is unlikely considering the traditional legislative inertia in this matter and the political costs in a profoundly religious country. The second would be for the MHSP, on its initiative or at the request of a party, to eliminate the exclusion directly. However, for this to happen, there would have to be political will on the part of the Government. The third way would be through the tutela action. In this case, it would be necessary to find a matter of a CID whose request is being denied and wait for the CC to select that file to establish binding jurisprudence. The fourth way, and the most likely path forward, is through the abstract judicial review of administrative acts. In Colombia, the procedural vehicle that activates this review is the action of nullity due to unconstitutionality. It is the competence of the Council of State, one of the Colombian high courts, to exercise this review. One of the advantages of this action is its public nature. In other words, any citizen, without the need to have a direct interest, has standing to file the action. Then, the claim would be a request of nullity of the exclusion, on the grounds of the reasons noted above. This is the most direct path to forcing the issue and demanding a reckoning on the unconstitutional exclusion of CIDs from the fundamental RDD.

About the author: Dr. Srikant Parthasarathy is a Professor of International Law. Image by Julia Rekamie available here. Martial law, as has been imposed by Russia in four regions of Ukraine annexed by the former on 19th of October 2022, raises two important aspects in the ‘rule of law’ interpretation in the International Law context. The last imposition of martial law was during World War II. This begs the question as to whether warring nations ,as per the ‘Rule of War’, can invoke martial law as a lawful excuse for the administration of the annexed region. Let us consider the contemporary rules of war, which is the unwritten, uncontested & derogation which is not permissible, i.e., the way in which the unfortunate circumstance of war occurs. This can include ensuring no impact to the civilian population. Whereas implementing the customary law on martial law restricts the scope of implementation of the martial law, only if the domestic courts cannot deliver the justice. In this instance, the unwritten rules on imposing martial law work within the domain of a country and where the judiciary cannot provide an effective remedy. This is, as a matter of practice, the last resort for countries In the situation of internationally warring states, the rules become complicated. The extra-territorial jurisdiction of Russia as of today is a matter within the determination of the International Court of Justice (“ICJ”), which ruled that both the nations (Ukraine and Russia) shall desist from use of force. A simultaneous interpretation of the ICJ’s ruling coupled with Russia’s martial law not only violates the international law and rules that it entails but also casts a doubt on the right of ‘self -determination’ by the people of Ukraine. Martial Law could prevent the situation of an armed conflict only insofar as the state controlled exists within the domain of a country. In this case, Ukraine’s regions are neither part of the Russian Federation nor within the domain of Russia. The origins of Martial Law and its checkered history can be traced to the manual published by the ICJ titled ‘Military-Jurisdiction-and-international-law-vol.2,’ which enumerates 17 instances where it finds Martial Law fundamentally violating human rights by referencing the Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”), which guarantees an unbiased trial to every human being. While the question of ‘Martial Law’ has been controversial in Sierra Leonne’s Coup d’état, the right to fair trial was a fundamental feature of human rights as per the African Commission on Human and People’s Rights. More judicial opinions are directly from ICJ’s reference in Algeria, Cameroon, Kuwait, Uzbekistan, Venezuela, as well as Russia in the past few decades. In all the instances, the ICJ opined that Martial Law violates the principles of democracy and justice, which nations cannot invade. Now the question is whether countries can set aside those principles conveniently in the climate of war. The answer is an emphatic ‘No.’ In war, especially when the war’s legality itself is in contention, the imposition of ‘Martial Law’ can lead to only arbitrary actions, which fly under the radar of an International Crime. Martial Law is far from a peacekeeping mission or a legitimate way of overriding the rule of war and the rule of law. It is pertinent to note the United Nations’ Special Rapporteur’s comment on the situation in Chile in 1995, which reads, “the Special Rapporteur found that civilians accused of terrorism and tried by courts martial were quite frequently subjected to torture and ill-treatment. the Special Rapporteur found that civilians accused of terrorism and tried by courts martial were quite frequently subjected to torture and ill-treatment.” In addition, Court Martials do not have an appeal mechanism and the wide margin of arbitrary actions by the Military, especially in occupied zones directly affect civilians. This affects the cardinal rule of International Humanitarian Law that “Civilians shall not be harmed in any manner whatsoever.” Martial Law also has the ability of extra-territorial application and naturally presumes criminal responsibilities on the persons tried under it. This is in direct conflict with the United Nations Declaration of Human Rights and the ICCPR. It would be difficult to erase from the Republic of India’s memory the Emergency proclaimed from time to time. It is also pertinent to note that the Constitution of India has not defined Martial Law, except for the inclusion of an executive prerogative, which is the cabinet to pass such orders as it may deem appropriate. India has never issued Martial Law in the 75 years of its independence but has encountered situations closer to the martial law in the infamous Armed Forces (Special Powers) Act (1958) and Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. Considering that Russia, an aggressive state, is using the Martial Law , it may be time for India to revisit its Article 34 of the Constitution, which gives discretion to the Parliament to ratify a martial law and risks the Republic of India to violation of the UDHR and the International Principles of Law. This may be an appropriate time to revisit this article of the constitution, especially when the Government is maintaining its position that “Law making is the sovereign power of the Parliament,” as law making also includes keeping a “contingent law” in check.

Amanda Colding (J.D. Candidate, Class of 2024) is a contributing editor. Her interests include private-sector international law, human rights law, gender-based violence advocacy, refugee rights, and youth and disability rights. Amanda holds a B.A. in English from Spelman College in Atlanta, Georgia, where she studied abroad in Durban, South Africa, for a semester. Before law school, Amanda served as a Freedom Corps Fellow at the Working Families Party and a coach for Progressive Pipeline’s cohort of fellows. Currently, she works as the team coordinator for the International Human Rights Law Clinic and will be working with the United Nations in Geneva, Switzerland, next semester. She speaks French at an intermediate level. New Global Market Emerging and Potential Challenges With the rise of cryptocurrency and digital assets, there is excitement and cultural buzz that makes crypto platforms like Bitcoin gain popularity. Yet with the rush to use these financial platforms, there has not been a full, in-depth assessment of the risks crypto poses to the economic market, according to CFTC Commissioner Christy Goldsmith Romero at the 2022 International Swaps and Derivatives Association's Crypto Forum 2022. Goldsmith Romero compared the state of unregulated crypto markets today to the profound lack of awareness regulators had in 2008 of market risks from unregulated companies and products. She was not the only one to compare the state of digital assets today to the 2008 financial crisis; Acting Chief of the Office of the Comptroller of the Currency Michael Hsu also drew this comparison. Today, the financial market is shifting from traditional financial assets and institutions to digital asset trading platforms and services. Although this economic shift comes with new technological innovations, the drawbacks of this new developing system pose regulatory challenges for traditional financial institutions and banks. There are rising concerns about potential financial crises surrounding unregulated digital assets and the unassessed risks behind digital asset trading platforms. The concerns that digital markets could present the same risks and issues that gave rise to the 2008 financial crisis are rooted in, as Goldsmith Romero put it, “opaque, complex, leveraged, and unregulated products, underappreciated risk, a lack of confidence that underlying assets are stable or of high quality, and lots of connections between market participants” One of the main factors that contributed to the widespread nature of the 2008 crisis was contagion risk, which occurs when a financial crisis spills into multiple different markets or regions on a domestic or international level because of the interdependency between markets. There have already been instances of contagion risk among collapsing digital asset trading platforms. For example, there was the case of TerraUSD, a stablecoin explicitly designed to hold its value at one United States Dollar. In May, an overall plummet in cryptocurrency values undermined TerraUSD’s supposedly stable value, causing it to collapse and taking its sister token, LUNA, with it. Due to TerraUSD’s collapse and a resulting lack of confidence in stablecoin from investors, Tether, the world’s largest stablecoin whose value is pegged 1-to-1 to the US Dollar, sank below its $1 value. The collapse of both LUNA and TerraUSD and Tether’s reduction of its total market capitalization by $9 billion emphasizes the risks that come with “a lack of confidence, run risk, and contagion risk.” Contagion risk also impacted Three Arrows Capital, a cryptocurrency hedge fund, which defaulted on loans to Voyager Digital, a cryptocurrency brokerage service, which in turn ultimately filed for bankruptcy. Three Arrows Capital also caused the financial distress for three different lenders including Genesis, BlockFi, and Blockchain.com as well as the failure of Celsius Network, another crypto lender. These lenders had to liquidate positions and halt lending. What is the Global Economy Doing to Combat These Potential Pitfalls? On a global scale, many countries have come together this year under the Organization for Economic Cooperation and Development (OECD) to create a proposal for a transparent financial system known as the Crypto Asset Reporting Framework (CARF). Under these global guidelines, countries will come together to collectively contribute to cross-border tax information exchanges for digital assets. As of October 10, 2022, CARF has been finalized and presented to G20 finance ministers and Central Bank Governors, but implementation will ultimately be left to each local jurisdiction. The CARF system ensures the exchange of this information on a reciprocal basis, especially information from decentralized financial systems which lack a centralized intermediary. One reason behind different countries seeking global tax transparency from financial institutions is that these decentralized financial systems can be exploited if there aren’t mechanisms to monitor whether funds originate from illegal activity or are intending to go toward funding criminal activity. According to the U.S. Department of Treasury, crypto-assets and markets that are unregulated can breed fraud, abusive market practice, and theft: “Certain practices in the crypto-asset ecosystem have resulted in financial harm to consumers, investors, and businesses, unfair and inequitable outcomes, and damage to the integrity of the market…of the $14 billion in crypto-asset-based crime in 2021, theft rose by over 500% year-over-year to $3.2 billion in total…the Federal Trade Commission (FTC) had more than 46,000 reported incidents of fraud between January 1, 2021, and March 31, 2022, with people claiming losses that exceeded $1 billion worth of cryptocurrencies.” The U.S.’s Prior Unilateral Approach to Global Data Exchanges Although there is an international effort to create a more regulated market and a unified global standard for regulating digital assets, it is unclear whether the United States will join its global partners in adopting this framework. CARF works toward creating a more regulated digital assets market through tax transparency specifically by increasing tax administrations’ visibility on tax relevant activities and helping to determine whether associated tax liabilities are appropriately reported and assessed. To date, the U.S. has not provided reciprocity when enforcing the Foreign Account Tax Compliance Act (FATCA) among its global counterparts. FATCA “requires foreign financial institutions to disclose information on US taxpayer accounts to the IRS or face a 30% withholding tax on payments from the U.S.” When this legislation was initially introduced, the U.S. Department of the Treasury (Treasury) announced that Washington was willing to enter into intergovernmental agreements to reciprocate the collection and exchange of information of accounts in U.S. financial institutions, especially of foreign persons living in the U.S. Yet, in practice, the IRS has not been able to share account balances because no mechanism required U.S. banks to report foreign individuals bank account balances to the IRS. The resulting unilateral exchange created tensions amongst different global powers including EU members for data privacy reasons. As opposed to when the United States agreed to FATCA, this time Washington is not guaranteed to have the same power or ability to conduct these unequal data exchanges, especially when it comes to cryptocurrency and digital assets. Possible U.S. Approaches Washington maintains three options to regulate digital assets domestically and internationally. One of those options is to continue to use the FATCA framework and incorporate digital assets into its legislation. If the U.S. were to amend FATCA, the government would then have to renegotiate current bilateral intergovernmental agreements which have received global criticism for the lack of reciprocity.. This poses an issue for renegotiation purposes especially because, as stated by Jon Feldhammer of the law firm Baker Botts LLP, “the U.S. government was very heavy-handed with the world in order to get FATCA done. It wasn't a situation where the U.S. reached out to the world to come together and agree on a solution to a worldwide tax evasion problem…accordingly, some countries may be hesitant to renegotiate…including those with crypto exchanges that rely on the U.S. account holders.” The United States also has the option to create a parallel tax system which incorporates digital assets into its framework that would work alongside FATCA. To create a parallel system that enhances cross-border tax transparency, Washington would have to enter into multiple intergovernmental agreements to ensure that foreign law allows foreign financial institutions to comply with reporting standards. This would be in consideration of the fact that the U.S. government no longer has the capacity to withhold source income for non-compliant parties, according to Paul Millen, a prominent international tax lawyer based out of Zurich, Switzerland: “the U.S. lacks the heavy stick it had available for FATCA—i.e., U.S.-source income withholding on noncompliant parties — that allowed that regime to be set up unilaterally." The U.S. was able to require withholding on payments to foreign financial institutions under FATCA due to the large indictment of a Swiss bank, Credit Suisse, for helping United States taxpayers evade taxes abroad. This happened for years through illegal cross-border banking activity including the filing of false returns and other documents with the IRS. As a result, the U.S. Congress passed FATCA to require citizens to self-report foreign assets over $50,000. The third option is for Washington to join its global partners in a reciprocal exchange of information to maintain uniform international standards when regulating digital assets under CARF. According to Denise Hintzke, managing director in the financial services tax practice at Deloitte, “joining other countries in adopting CARF rules could allow for a consistent system.” Having the U.S. join the global market economy along with 38 member states of the OECD and the G20 will enhance global transparency on equal footing. This would contribute to the emerging international law surrounding digital assets and tax transparency which each country could acknowledge and adopt into their domestic law. Hintzke supports “[the] idea of the U.S. participating in CARF [which] would actually make sure that everything was more standard around the world.” Washington has a chance to contribute to cross-border cooperation and substantiate an area of international law that regulates an emerging market based on the digital asset industry. Indications of a U.S. Decision Treasury recommended legislation in the Green Book for the 2023 fiscal year (released in March 2022) that allows the IRS to share digital asset information globally through a system that is similar to FATCA. The recommendation states that the Secretary of the Treasury has the authority to implement regulations to allow for an international automatic exchange of information that includes providing foreign individuals bank account balances under FATCA. This indicates that the U.S. might be moving in the direction of creating its own parallel system based on multiple intergovernmental agreements. Push for U.S. International Cooperation Ultimately, the United States would contribute to overall transparency and uniformity in digital markets if it chooses to adopt CARF. Doing so would bring legitimacy to the regulatory framework for digital assets, while also establishing Washington’s willingness to join its global peers in combatting tax evasion, money laundering, and terrorist financing on an international scale. Creating a system of global transparency in the digital asset financial system would strengthen the global economy and prevent harm like the 2008 financial crisis. The U.S. has the opportunity to participate in a global community that cares more about the health of the global economy than maintaining unilateral power. If the United States chooses not to adopt the CARF framework, it leaves the global market and its peers vulnerable to exploitation. Choosing to maintain its non-reciprocal approach to regulating digital markets would create a gap in protection. Joshua Smeltzer, a partner-elect at the law firm Gray Reed & McGraw LLP, said that “without reciprocity, you create that hole where the system can be abused.” Although there have been amendments to federal Internal Revenue Code 6045 to ensure that brokers have to report digital assets on the IRS form that records customer gains and losses during the tax year (1099-B), this does not extend to data collection on foreign individuals living in the U.S. which the government can send to foreign governments. Hintzke commented that, "‘those 1099[-B] rules do not address what would be still [sic] a really big hole’—either for foreign people who invest in digital assets in the U.S. or vice versa.” Leaving the developing and volatile digital part of the market unprotected and unregulated creates a dangerous situation for both Washington and the global economic market. Although the United States has been a global leader in financial security, the decision to commit to non-reciprocal efforts and unilateral agreements between its partner countries puts its own citizens at risk for substantial financial harm. .

About the author: Tushar Krishna is a penultimate student at West Bengal National University of Juridical Sciences, Kolkata. His deep interest lies in International law and Humanitarian Law. Currently, he is also the convenor of the International Law Student Association NUJS chapter. Image by Kateryna Babaieva available here. I. Introduction In the contemporary world, 6000 people die daily from work-related illnesses and fatalities, accounting for over 2.3 million annually. The number increases multifold if we consider the number of occupational fatalities (i.e. 340 million) and victims of work-related diseases (i.e. 160 million). Considering the seriousness of the situation, on June 10, 2022, the International Labor Organisation (ILO) adopted a resolution (‘2022 Resolution’) to incorporate “occupational health and safety (OSH)” as a fifth fundamental principle and right at work (FPRW). It elevates the “right to the safe and healthy working environment (RSHWE)” to the same level as the other four FPRW – (i) abolition of child labor, (ii) elimination of discrimination in employment, (iii) right to collective bargaining, and (iv) elimination of forced labor – and internationally recognized it as “universal labor right”. Here, it is noteworthy that the RSHWE is not something new for the ILO to recognize. Rather, the 2022 Resolution finds its place at the very heart of the ILO preamble and 1944 Declaration of Philadelphia (which laid down ILO’s aims and purposes). Therefore, the question stresses on the potential difference that the ILO recognition of RSHWE can bring and whether the mere recognition by ILO is sufficient to ensure a reducing mortality rate and work-related diseases. If not, what steps must be taken to guarantee that the 2022 Resolution’s true objectives are carried out? Given the importance of these questions, I tried to answer them in this article. II. What does it mean to have RSHWE recognised by ILO? With the recognition of RSHWE as FPRW, the Convention on Occupational Safety and Health, 1981 (C-155) and Convention on Promotional Framework for Occupational Safety and Health, 2006 (C-187) have been conceded as ILO’s “Fundamental Convention”. If we see the primary obligation of the 2022 Resolution – “all ILO member states (‘MS’), no matter whether they have ratified the Conventions in question or not, have an obligation arising from their ILO membership to respect, promote and realize, in good faith, […] a safe and healthy working environment” – it does not require the MS to ratify the conventions for being obligated by them. However, past experiences have shown a massive ratification wave of fundamental conventions following their recognition as FPRW. For instance, after the 1998 Declaration on FPRW (1998 Declaration), the number of ratified countries for the Convention on Minimum Age rose from 58 to 175. Similarly, as of now, the ratification of the Convention on Forced Labor increased to 180, and the Convention of the Worst forms of Child Labor increased to 187. Therefore, it would be unsurprising to observe C-155 and C-187 ratified in increasing numbers in the near future. Nonetheless, it is questionable whether this possible consequence would make any difference because MS’s obligation under the 2022 Resolution is unrelated to whether or not they ratify the core conventions. The answer is likely affirmative. Since the ILO falls under soft law as it hardly provides strict enforcement measures on its MS (aside from reporting requirements), there are instances like India, an ILO member, purposefully avoided ratifying the Convention on Collective Bargaining (C-98), which is a fundamental convention, so that it is not required to enforce the rights attached to it like the right to strike, without caring about the fact that being an ILO member itself requires it to bound by the obligation under C-98, irrespective of ratification. It shows that even though ratification of the conventions in question is not required once RSHWE is recognized as FPRW, in practice, ratification is what ensures that the MS are taking the legally binding obligation on the said rights. Therefore, in this regard, even if we consider that the 2022 Resolution in itself does not make MS legally obligatory towards enforcing RSHWE, the ratification would definitely help in enforcing RSHWE to a greater extent globally. Moreover, the RSHWE’s inclusion under FPRW would have a significant impact on global commerce and trade. The 1998 Declaration serves as the cornerstone for some of the most significant models of commercial policies/guidelines – i.e. Guiding Principles on Business and Human Rights, UN Global Compact, cross-border trade agreements, and numerous other transnational codes of conduct. Indeed, in the past, there have been only few bilateral trade agreements like EU-Canada CETA, EU-Singapore FTA, et al., laying down the “OSH” as part of their labor standards (along with the other four FPRW). Although the ILO made it clear that the 2022 Resolution does not impair its MS’s obligations with regard to standing trade agreements, there is no doubt that the Resolution would lead to emerging transnational trade agreements incorporating a legally obligatory labor clause on RSHWE to a greater extent. Therefore, it is evident that the 2022 resolution will have a significant impact on the greater recognition of RSHWE in global trade. III. Why is mere recognition not enough? Although ILO’s recognition is a landmark decision, it is only the beginning (and not the endpoint). One of the reasons behind is the inherited flaws which are present in it (some are already pointed out above, like non-enforceability mechanisms, no real legal obligation without ratification, et al.). In recent times, when governments across the globe seem to encourage inexpensive labor to entice investments, these emerging labor norms might be adopted for the “namesake” in order to avoid international condemnation without truly enforcing them. In fact, the seriousness of the issue can be observed from the fact that due to these economic considerations involved, policymakers had excluded RSHWE from the 1998 Declaration. Additionally, with the recognition of a right under FPRW, certain conventions are recognized as “fundamental conventions”. It led to a “hierarchy” among ILO’s own conventions – “fundamental/universal conventions” and “other conventions (in the current context, there are 40 ILO conventions specifically address concerns related to RSHWE; some are even indispensable to fully realize the OSH in workplaces)” – which is consequently becoming a barrier in achieving the overall objectives of not only “other non-recognized conventions” but also fundamental conventions. For instance, the Chemical Convention 1990 (C-120) has a direct linkage with the workers’ health and safety as it lays down the specific mechanism for workers to deal with harmful chemicals and their disposal. It also delineates the workers’ (also supplies’) specific responsibilities and duties while workers deal with chemicals. Evidently, these principles play an indispensable role when the question comes to setting a national policy on RSHWE, as mandated under C-155 and C-187. The same applies to numerous other conventions, including but not limited to C-115, C-167, C-176, et al. So, there is a close nexus between fundamental conventions and other conventions. However, due to mere recognition of C-155 and C-187 as fundamental conventions, nations will not feel obligated to ratify additional conventions that are essential to obtaining RSHWE’s ultimate goal (particularly when many MS are not even inclined towards ratifying fundamental conventions – See India’s instance discussed above). Therefore, while the ILO recognition of RSHWE is a significant step, the mere recognition would be, unfortunately, insufficient to guarantee a safe and healthy working environment without additional measures. . IV. What is needed? The 2022 Resolution itself emphasizes that recognition of RSHWE as FPRW is one thing, and its global enforcement is another thing. The initial step could be a large number of ratification of not only the fundamental conventions but also the other related conventions. These conventions, very broad in scope (as applicable to all sectors and economic activities), require the nations to develop, enforce and regularly review a national policy and a national safety and health culture on OSH, which can lead to a greater impact. Although ratification is the first step, it is not enough. Real implementation can only be possible with active engagement and the concerted effort of all the stakeholders involved – i.e. employers, governments, and international organizations – in executing their obligation and duties. Employers need to realize that OSH is more likely to be an investment than an expense as it affirms the increased worker contribution due to reduced workplace injuries and illness, thereby enhancing overall productivity. The governments require to support underlying obligations under the said conventions by welcoming domestic laws and regulations with effective enforcement measures and penalties attached. There is a need to have effective capacity-building programs, which can be supported by opening information advisory services on OSH and training programs. Here, the partnership with ILO and its sister organizations like ICO, IHOCA, ECOCA, and other institutes, which work on the development of tools, materials and training, can come into the picture. Additionally, it is necessary to mandate due diligence on the global supply chain and trade agreements with respect to a healthy and safe working environment. Although these requirements are challenging to meet, they are actually just a small part of what is needed to attain the real goal of RSHWE, i.e., people who go to work can come back home alive, uninjured and healthy.

About the author: Rohit Gupta is a final-year law student at the West Bengal National University of Juridical Sciences, Kolkata. Any discussion or lessons extracted from an analysis of Russian laws hereunder should not be taken as any form of condonation or support for Russia's aggressive war in Ukraine. Image by "verybadcow" available here. Introduction On December 28, 1973, a space crew aboard the American Skylab 4 declared a “one-day sit-down” strike while in orbit. Staged as a work slowdown, the strike incited widespread concern regarding labor regulation and fair treatment from amongst the most unconventional industrial settings. Skylab 4, the three-man crew, had expressed its inability to sustain the workload threshold established by their predecessors while operating the mission. Their work involved a long and hectic schedule without relaxation. On complaining, the crew received demands of increase in efficiency, even though the previous crew, now on ground, sided with Skylab 4, affirming the unreasonableness of the workload. Eventually, on December 28, 1973, six weeks into their mission, the crew turned off all radio communications with ground control. After coming back online, National Aeronautics and Space Administration (NASA) communicated with the crew with an amenable attitude, granting it time to avail full resting periods and meal breaks. NASA also replaced the crew’s minute-by-minute schedule with a list of tasks, asking the crew to manage its own time within deadlines. While the mission went smoothly after the changes, upon returning, none of the crew members were ever assigned to another space mission again. Although the said incident was not the first time that a spaceflight crew refused to obey ground control orders and halted the performance of tasks, none of the other incidents arose from the crew’s unmet demands of reducing the overwhelming workload. Several questions relating to fair and equitable labor rights arise concerning the work and employment conditions for astronauts and other space personnel. For example, should astronauts be classified as employees, public servants, or military personnel following military mandates? Are astronauts even allowed to strike? What of those astronauts who are sent for entirely private-funded space missions by commercial spacefaring corporations? This post is an effort to initiate a conversation on the labor law protections that astronauts must have access to. It does so by looking at currently active protections and charting out positive measures to address the lacuna. Nature of Employment for Astronauts and Other Space Personnel Astronauts have been universally known as “envoys of mankind,” responsible for conducting space activities “for the benefit and in the interests of all countries,” as opposed to merely being employed for private profiteering. Commercial astronauts, individuals trained to command, pilot, or serve as crew members of privately funded spacecrafts, have been recognized as a separate class, termed as ‘personnel of a spacecraft.’ It remains unclear, however, whether the ‘envoy’ label is attractive to all those who venture into space, regardless of whether they rely on public or private funding. Article VI of the 1967 Outer Space Treaty, the magna carta of international space law, states that States shall be internationally responsible for all “national activities” in outer space, including those conducted on the Moon and other celestial bodies. While ‘national activities’ have been treated as including both governmental and non-governmental activities, the Treaty itself does not define the term. Must we treat all astronauts and space personnel, regardless of whether private corporations employ them, as federal employees? The ‘Frequently Asked Questions’ page on the NASA website made a distinction between civilian and military astronauts in that all civilian astronauts are federal employees. It is unclear, however, whether astronauts employed for entirely privately-funded missions would continue to qualify as federal employees, or whether NASA would consider them as ordinary private employees. On the other hand, military astronauts are detailed to NASA for a specified tour of duty, or to the United States Space Force and receive military pay, benefits, and leave while remaining in active duty. Since there is no clear interpretative guidance or jurisprudential knowledge to support a further conclusion, it is wiser to assume maximum protections for both astronauts and space personnel and to analyze the adequacy of these safeguards from a labor law standpoint. International Basic Minimum Safeguards for an Outer Space Workplace The 1968 Rescue and Return Agreement is the only international document with express rights and obligations attached to the status of astronauts and other space personnel. This contains an obligation to (1) notify information about an astronaut or a space personnel having experienced an accident, distress, emergency, or unintended landing, (2) immediately take all possible steps to rescue said personnel, and (3) to promptly return said personnel to representatives of the launching State. None of these provisions, however, concern the labor or employment conditions of astronauts and other space personnel. The most comprehensive manifestation of a right to health appears in Article 12 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Its drafting history clearly states that Article 12 includes a right to a safe and healthy working environment, including the availability of functioning health-care for both physical and mental ailments. For astronauts, this may include establishing measures against occupational accidents and diseases, protection against harmful radiation, etc. The issue lies in the inclusion of the phrase “as far as reasonably practicable,” which allows States to circumvent ordinary standards of workplace conditions. Eventually, facilities such as gyms or other recreational facilities necessary for destressing may be negotiated off the table. Founded in 1919, the International Labor Organization (‘ILO’) has identified eight fundamental conventions and four fundamental principles in furtherance of a bona fide discharge of the mandate of the ILO’s Constitution. The principles include: (1) freedom of association and the right to collective bargaining, (2) the elimination of all forms of forced or compulsory labor, (3) the abolition of child labor, and (4) the elimination of discrimination in respect of employment and occupation. Inter alia, the ILO, in conjunction with the International Labor Conference, has also attempted to set new fundamental standards centered around: (1) social security, including essential healthcare, security for children, income security, and (2) violence and harassment in the workplace. Thus, while Member States are free to legislate according to their own national policies and mandates, all employees across industries, including astronauts and other space personnel, must benefit from the above mentioned minimum standards. Supplementary National Space Legislation: The Russian Labor Regulations for Space Personnel As prescribed under Article VIII of the 1967 Outer Space Treaty and Article II of the 1975 Registration Convention, the national legislation enacted by States remains applicable to the individual crew members during their stay in space, aboard the International Space Station, or on the Moon or other celestial bodies. This note embarks on a case study of the national legislative landscape of Russia, which hosts the first and oldest space exploration program. Russian cosmonauts are designated employees of the Roscosmos State Corporation for Space Activities, a state-owned corporation. The Labor Code of the Russian Federation applies to all employment situations regardless of the employers’ organizational and legal status or ownership. Section X of the Russian Labor Code not only includes the right of employees to fair working conditions, the right to a hygienic workplace, and the right to leisure, but also prioritizes employees’ health and obligates best practices for improving working conditions (Articles 2, 210). It also obligates employers to ensure safety conditions and labor protections, such as surveillance and medical examination (Articles 211–213). Special technical requirements relating to permissible radiation, vibration, noise, and other emergency situations are imperative for employees working in environments exposed to high amounts of ionizing radiation. Articles 227–231 also prescribe a detailed procedure for reporting and investigation of workplace accidents, with provisions for determining liability and apportioning compensation. Unfortunately, the Code only recognizes bodily harm, as opposed to harm to mental health, in the context of accidents. In 1995, the government issued an official standard GOST R 50804-95 entitled ‘Cosmonaut’s Habitable Environments on Board of Manned Spacecraft: General Medicotechnical Requirements’ to fill in pre-existing gaps. Chapter VIII of the GOST includes preventive measures to the adverse effects of weightlessness, for example, making the mission’s duration indicative of proper applicable preventive measures, including considerations of the weightlessness effects during crew selection phases, and organizing physical trainings. The GOST also includes the most concrete regulations on mental health protection for spacecraft personnel, requiring mission planning procedures to include mental health concerns, including sensitivity to the crews’ schedule, allowing “time off”, training crewmembers in self-monitoring, and providing external sources of mental stimulation. Alas, the GOST remains merely a governmental standard which is not directly justiciable. Development of a New Outer Space Labor Law Principle In the face of an acute lack of an international outer space law regime regulating labor conditions, the international community must enact a new principle obligating launching authorities to provide services and facilities necessary for sustaining the minimum labor safeguards of spacecraft personnel before launching, while the spacecraft carries personnel, and after the spacecraft personnel return to Earth. In keeping with the vagueness of the 1967 Outer Space Treaty, the principle should accomplish two goals. Firstly, it should be mandatory for state parties to develop health regulation or policies, thus establishing a more uniform international approach. Secondly, it should allow States to implement such health regulations at an appropriate level, making it possible for States like the United States to delegate the policy-making duty to the national space agency, or for a state not on the forefront of space exploration to create a national policy.

About the author: Nimisha Thomas, Assistant Professor & Assistant Dean (Academic Affairs), Jindal Global Law School; Senior Research Fellow, IIFT, Ministry of Commerce & Industry, G.O.I. Image by DG EMPL available here. The United Kingdom (the UK) and India launched negotiations for a free trade agreement (FTA) on January 13, 2022. In parallel, the UK’s Department for International Trade published its strategic approach for the negotiations, listing several policy areas in which negotiations may ensue. One such policy area is “Trade and Gender Equality,” which can also be found in the UK’s most recent FTA, the UK-Australia FTA. The inclusion of gender equality in the policy paper points to the UK’s trade-related ambitions which it could also pursue in its future trade negotiations with its prospective trading partners. The inclusion of gender equality is not entirely new to the world of international trade agreements; articles on gender equality already exist in FTAs between Canada and Chile, the European Union (the EU) and Mexico, and the Comprehensive Economic and Trade Agreement. Gender equality found a voice in international forums as early as 1995 at the Beijing Platform for Action and later on in platforms such as the Group of Seven, the International Labor Organization, and the World Trade Organization (the WTO). Proponents of gender equality in international trade argue that creating policies based on gender perspective would aid in eliminating gender inequalities and increasing trade. This article analyzes the gender equality provisions in the UK-Australia FTA and their impact on developing and least developed countries (LDCs). While gender equality provisions are well intended, they can hurt developing countries and LDCs. This analysis can help LDCs identify the possible drawbacks of incorporating such provisions while negotiating with developed countries. Objective of Gender Equality Chapter under the UK-Australia FTA Chapter 24 of the UK-Australia FTA aims to integrate gender equality in trade and investment to achieve both economic growth and equitable participation through gender-responsive policies. Under Chapter 24, the parties are required to adopt policies with gender perspective in consideration, meaning policies that give men and women equal opportunities and market access. The implication of this approach is wide-reaching in different aspects of trade and investment under the FTA, such as digital trade, SME, labor, and government procurement. Art. 24.1 (3) furthers this goal by committing parties to “advancing the evidence base on women’s economic empowerment and trade,” as highlighted under the WTO Joint Declaration on Trade and Women’s Economic Empowerment, 2017. Additionally, Art. 24.1(6) persuades the parties to share their experiences in designing, implementing, resourcing, and strengthening policies and other initiatives to advance gender equality. The FTA also requires the parties to address the systemic barriers that prevent women, including workers, business owners, and entrepreneurs, from participating equitably in all aspects of trade. The gender Chapter broadly focuses on dual elements to achieve gender equality. First, it mandates that members should incorporate gender perspectives in data collection, analysis, and monitoring when sharing such information with each other. Second, gender-responsive policies should be integrated into the domestic regulatory system of the parties. The resultant implication of these two objectives is increased market access and the removal of barriers for such access. The following provisions put forward the means to achieve these objectives. Gender Equality under the FTA Article 24.3 of the FTA lays down the following provisions for the pursuit of cooperation activities by the parties: Cooperation Activities: This provision broadly provides for the facilitation of women’s participation in opportunities created by the implementation of the FTA through the means of information sharing, experiences and evidence. These means apply to activities such as improving the access of women to markets, technology and financing; promoting equal opportunities for women in the workplace, including workplace flexibility; improving the access of women and girls to leadership opportunities and education, including in fields in which they are under-represented, such as STEM, insofar as those activities are related to trade. etc. Data Collection, Analysis and Monitoring: This provision requires the parties to exchange information based on gender perspectives through means such as the collection of sex-disaggregated data, the use of indicators, monitoring and evaluation methodologies, and the analysis of gender statistics related to trade. Impact of Gender Equality Related Provisions on developing and least developed countries The FTA stresses increasing participation of women in trade through cooperation activities with a specific focus on formal sectors such as technology, STEM, digital skills, and businesses. It also incorporates collaboration for equitable participation of women in the global supply chain. Such international commitments will certainly prove advantageous for developed countries where there is significant participation of women in business, education, and STEM. Further, it might not be cumbersome for these countries to collect data through expensive methodologies or integrate policies from the gender perspective. However, sex-disaggregated data and gender-responsive commitments as a focal point could emerge as a potential challenge for developing countries and LDCs for four key reasons. First, such a data collection process is expensive and time consuming considering the huge population of countries such as India, Bangladesh for example, lack of standard data collection format and illiteracy. Second, the economic empowerment of women is interlinked with factors such as gender biases and gender roles, due to which women are underrepresented in STEM and business sectors in low-income countries. Instead, sectors in which females dominate are those where low-skilled, low-paid, illiterate workers are employed. In such an existing scenario, focusing only on giving market access to foreign competition in the above-mentioned formal sectors would not only increase competition for domestic participants, but also hinder their economic empowerment. Third, integrating gender-responsive policies would be another hurdle for developing countries and LDCs if these policies are adopted based on data. Developing countries and LDCs often lack harmonization and recognition of data collection methodologies, making data driven policymaking difficult . It is important that parties agree to minimum standards for the recognition of data and that they reach a consensus on data collection and monitoring methods. Developed countries should be sensitive to the impediments faced by developing countries and LDCs in this regard. Lastly, gender provisions should not be subjected to dispute settlement mechanisms, as they could result in unfair liability for low-income countries. Currently, these provisions are administered in a non-binding manner through institutional mechanisms with the facilitation of consultations and discussions among the parties in case of inconsistencies with the textual commitments. However, there are cross-cutting references of gender-related provisions throughout the agreement under separate chapters, such as digital trade and services, and some of these chapters are subject to strong dispute settlement mechanisms like arbitration. Ultimately, the effect of incorporating gender-related provisions in investment agreements places de facto onerous obligations on low-income countries due to the reasons mentioned above. Conclusion The objective of achieving women’s economic empowerment through the insertion of gender-related provisions in investment treaties is certainly an applaudable approach by the international community in bringing the issue to the fore. However, placing onerous liability on developing countries and LDCs via evidence-based data collection methodologies and seeking market access in these countries by overlooking the impediments of women’s participation in the trade in these countries defies the principle of equity. Further, the insertion of cross-cutting references of these provisions in chapters that consist of binding commitments again impedes the original agenda of women’s economic empowerment as far as low-income countries are concerned. While negotiating such commitments, the developed nations should be sensitive to the socioeconomic conditions of the developing countries and LDCs. Summing up, this article proposes that firstly, the parties should only engage in persuasive commitments recognizing the importance of gender in trade through non-binding international commitments initially. It would assist in sensitizing the low-income countries about the impact of women in trade and allow them to gradually integrate gender-responsive policies in their regulatory framework. Secondly, incorporating provisions related to funding opportunities for elevating the status of women in low-income countries might change the social approach towards women. Thirdly, incorporating sectors that are also relevant to developing countries and LDCs would progressively enable greater participation of women in trade. Fourthly, providing transition periods for the adoption of gender perspectives in data collection and policymaking would also reap positive results. Lastly, avoiding any cross-cutting references of trade-related chapters would also encourage developing countries and LDCs to advance the cause of women’s economic empowerment without concerns of sanctions. Therefore, there should be a balance of interests of the developing countries and the LDCs on one side and the developed countries on the other for comprehensively advancing the cause of women’s empowerment. [The opinions expressed in this publication are those of the author and do not purport to reflect the views of the organizations the author is associated with.]

Meredith Sullivan (J.D. Candidate, Class of 2025) is a contributor to BJIL. Her interests include human rights, tech policy, and international and comparative law. Meredith graduated from the Dual B.A. Program between Columbia University and Sciences Po with degrees in Political Science and holds an MPhil in Middle Eastern Studies from the University of Cambridge. Before law school, she worked as a paralegal at a legal aid organization, helping tenants in Massachusetts defend against eviction. Meredith speaks fluent French and proficient Arabic, Spanish, and German. On September 13, 2022, Iran’s Guidance Patrol arrested Jina (Mahsa) Amini, a Kurdish Iranian woman visiting Tehran, for improperly wearing hijab. She died in police custody a few days later. Her death sparked widespread protests for bodily autonomy and against state violence. Over a month later, the demonstrations continue, yet, news from protestors on the ground flickers, as the government resorts to familiar tactics of limiting Internet access. Internet shutdowns like these pose a grave threat to human rights globally. How can international law tackle the threat of internet shutdowns to protect these rights? What’s Happening in Iran? While people all over Iran took to the streets in the days after Amini’s death, the government had already started to shut down the Internet and restrict digital communication channels. Within the first week of protests, the government had blocked the few available social media sites, Google Play, the Apple Store, and encrypted DNS. In a recent report by the Open Observatory of Network Interference (OONI), the blocking of encrypted domain name systems (DNS) was noted as particularly worrisome as it will render “censorship circumvention – in an already heavily censored environment – harder.” Instagram was restricted across all major Internet providers in Iran, one of the last social media platforms to be banned. WhatsApp has also experienced continued disruptions, in addition to Skype and LinkedIn. Mobile networks have been repeatedly interrupted with daily, curfew-like patterns to the interference. Universities where students have striked against the government have also encountered stunted Internet access. By late September, watchdog organization Netblocks observed an anomaly in connectivity on major Internet provider Telecommunication Company of Iran (TCI), tantamount to national disruption, followed by disruptions to regional telecommunications providers in various provinces. Kurdistan Province, where Amini was from, has also experienced complete Internet blackouts in major cities since the protests began. As recently as mid-October 2022, a month after Amini’s death, Netblocks confirmed persistent and severe disruption to Internet traffic and major broadband providers in Iran. As long as protests persist, it is likely that the government will continue to control the flow of information via Internet shutdowns. Contextualizing Internet Shutdowns within International Law According to a May 2022 report by the United Nations Human Rights Cоuncil (UNHRC), Internet shutdowns are “measures taken by a government, or on behalf of a government, to intentionally disrupt access to, and the use of, information and communications systems online.” This covers interference with Internet access broadly — from a total blackout, to throttling connections, to blocking specific platforms, websites, or services. Throttling bandwidth makes it difficult to meaningfully use the Internet, and hinders the sharing or watching of videos. In places where most users access the Internet from their phones, governments can disrupt mobile service and thereby force many offline. Importantly, the recent HRC report emphasizes that Internet shutdowns are “powerful markers of deteriorating human rights situations.” Governments tend to restrict Internet access in moments of heightened tensions, namely around elections or during large-scale protests. Further, there is a link between Internet shutdowns and periods of increased state violence. Unsurprisingly, restricted access to the Internet weakens internal organizing efforts and information sharing, and precludes the documentation of human rights violations and compliance with domestic and international law. The right to Internet access is not (yet) enshrined in international law. However, it is deeply intertwined with other fundamental rights, such as freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) enumerates the rights most directly impacted by shutdowns: the right to “hold opinions without interference,” to freedom of expression, and to access and disseminate information. Article 19 contains a crucial caveat; it permits that exercising these aforementioned rights can be restricted, but only when “provided by law” and necessary “for respect of the rights or reputations of others” or ”[f]or the protection of national security or of public order.” The HRC reports that Internet shutdowns often violate Article 19(3) because governments seldom state the legal foundation for a shutdown, or even formally acknowledge its occurrence. When states do refer to national security or laws, the legal underpinnings are usually too broad and vague to support the shutdown under Article 19(3). The Human Rights Committee’s General Comment No. 31 from 2004 clarifies additional limitations to restrictions of any ICCPR’s rights: “States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims.” With the sweeping nature of Internet shutdowns, it is unlikely that they are ever proportionate to their stated aim, as they inherently infringe on protected rights and interfere with legitimate activities. The International Telecommunication Union (ITU) is a UN agency focused on promoting global standards for information and communication technologies (ICT), including the Internet. Articles 34 and 35 of the ITU Constitution clarify when states are justified in stopping telecommunications. Article 34 gives Member States the right to cut off private telecommunications, in accordance with domestic law, for reasons of national security. Article 35 permits Member States to suspend international telecommunications service, in a general or targeted fashion, provided they immediately notify the ITU Secretary-General. In both the ITU Constitution and the ICCPR, national security is a salient, and opaque, justification for states abridging rights and ICTs alike. Iran’s Recent Internet Shutdowns This is not the first time that the Iranian government has employed Internet shutdowns during periods of unrest. The government first slowed down the Internet in the wake of a contested presidential election and the Green Movement protests in 2009. In the past few years, Tehran has disrupted Internet access simultaneously with disproportionate use of lethal force against civilians on two notable occasions. In 2021, regional Internet shutdowns attempted to mask indiscriminate violence by state security forces against protestors across cities in Sistan and Baluchestan Province. In November 2019, the Iranian government implemented a complete Internet blackout to mask egregious human rights violations. The government announced an exorbitant increase in fuel prices that sparked massive demonstrations. Security forces violently bore down on protestors as authorities ordered Internet service providers (ISPs) to disconnect the internet. This shutdown lasted between six and 10 days and allowed hundreds, if not thousands, to be killed, injured, or detained with impunity. Iran was better able to cut its citizens off from the world because it had developed a domestic and heavily-censored intranet, the National Information Network project (NIN), that allowed the government to keep vital services running, despite still incurring economic losses. These shutdowns are also embedded within a general context of heavy Internet censorship. International Law in Practice Despite shutting off the Internet, Iran participates in many of the aforementioned international treaties and bodies. Iran is a state party to the ICCPR and has both positive and negative legal obligations under this treaty. It is also bound by the ITU Constitution. Sometimes, international law itself provides an excuse for state actions that are in otherwise flagrant violation of human rights. For example, a report by the human rights organization ARTICLE 19 emphasizes that Tehran has previously incorrectly interpreted Article 34 of the ITU’s Constitution to confer a right on state authorities to enact shutdowns. The language of Article 34 permits interruptions when “dangerous to the security of the State,” giving wide berth to states to make justifications, but ARTICLE 19 reports that the Iranian government has failed to comply with the Constitution’s requirement of giving notice to the ITU. The international community has long recognized the threat inherent in Internet shutdowns and now their increasing frequency and sophistication. Due to shifting composition of the HRC, and international bodies generally, it is not easy to get resolutions passed on shutdowns. Many states, including Russia, a frequent practitioner of shutdowns and censorship, have objected. In 2016, the HRC passed a non-binding resolution condemning Internet shutdowns, but the recommendations mirror those in other UN agency reports, as they are unlikely to change the behavior of a state already resorting to shutdowns. Beyond states’ obligations under international law, which they seem to flout, various recommendations emphasize the role that technology companies can play to avoid shutdowns, exercise due diligence, and inform the public. This possible corporate role is reduced in Iran, where US sanctions have stymied the presence of global companies and this potential pressure point on the government does not exist. Beyond restricting technological alternatives available to Iranians, the US sanctions have harmed Iranian people attempting to circumvent both their government’s quotidian censorship and the more serious instances of shutdowns. In light of the difficulties of getting governments to comply with international law, and the unique situation in Iran, constrained by decades of sanctions, civil society continues to shoulder the burden of tracking and documenting Internet shutdowns as they happen and demanding accountability. Conclusion Tehran’s behavior is consistent with global use of Internet shutdowns as a tool for political control. The ongoing Internet disruptions since Amini’s death constitute the most serious shutdown in Iran since the total blackout in November 2019. Currently, much of the work lies with civil society, individuals, and tech companies, to help Iranians to evade censorship, bypass shutdowns, and demand accountability. Interestingly, the United States recently eased its sanctions on communications technologies in Iran, expanding the types of permitted platforms and removing a requirement that communications be personal. While it may be a positive example of concrete action in response to the protests, generally unilateral action is worrisome; it lacks the checks of the international system and Iran has already suffered enough from foreign intervention. It is incumbent upon the international legal community to address contradictions between legal instruments that can be used to justify unacceptable behavior by states and to strengthen legal obligations, like establishing a right to the Internet. For now, the international community must amplify Iranian voices and keep the Iranian government under scrutiny, calling out both human rights abuses and shutdowns. This is another, grave reminder that Internet shutdowns are increasingly becoming a feature of state control and the international community must continue to work toward concrete solutions and non-interventionist enforcement mechanisms.

Weifeng Yang (J.D. Candidate, Class of 2025) is a contributor. His interests include administrative law, European Union law, and international and comparative law. Weifeng holds a B.A. in Government and History and a Master of Public Administration from Cornell University. Before law school, Weifeng interned at Human Rights Watch Asia Division. He is a native Mandarin Chinese speaker. Introduction On June 23, 2022, Ukraine and Moldova became the two latest countries to achieve European Union (EU) candidacy status, barely four months since each country submitted their application. The process by which the two countries reached their candidacy status was astonishingly fast compared to other countries currently in the EU’s enlargement policy, which usually takes at least a year or more between application and candidacy. Despite submitting its application in 2016, Bosnia and Herzegovina has still not yet achieved candidate status. Indeed, the EU’s policy record regarding the West Balkans has failed. Gone was the era of 2004, when 10 new countries with a combined population of 75 million joined the EU in unison. The same failure is not limited to EU external expansion. Essential aspects of EU internal integration, such as the Eurozone and the Schengen Area, still need to be completed. Despite joining the EU some 15 years ago in 2007, with the European Parliament first urging their entry in 2011, Bulgaria and Romania remain out of the Schengen Area. Only 19 of 27 countries use the Euro, while only two of the eight holdout countries (Croatia and Bulgaria) are remotely near joining. Indeed, the gap between EU countries more motivated to integrate and those that wish to cling to their sovereignty, for a time, appears to be ever-growing. After his first election in 2017, French President Emmanuel Macron called for a core of “avant-garde” countries leading deeper European integration. The specter of “multi-speed Europe,” that some core European countries could integrate among themselves while leaving those unwilling behind, has since haunted the EU project. Recalling the fast track mentioned above for Ukraine and Moldova’s EU application, prospects for European integration have changed dramatically. With the Russian invasion of Ukraine, European integration seems to be back on its feet. To better understand the overall picture of European integration in light of these recent and dramatic events, this article aims to provide a rough vision of the concept of “multi-speed Europe” and its future with more holistic integration projects. The Background of Multi-speed Europe The idea that European nations hold different opinions on how much (if any) European integration is needed is nothing new. At the European Economic Community (EEC)’s founding, the more pro-integration “Inner Six” countries centered around France and Germany stood in stark contrast with the “Outer Seven” centered around the United Kingdom and Scandinavia. In fact, a separate organization, the European Free Trade Area (EFTA), was founded by the “Outer Seven” to be a counterbalance to the EEC. Unlike the EEC, the EFTA does not have any supranational institutions with a political focus. EFTA members were allowed to pursue independent free trade agreements with other countries without the common external customs tariffs that existed within the EEC. Though the EEC eventually won out, with almost all EFTA members joining the EEC (which later became the EU), this only brought divergence into the institutions of the EU. The Danish people famously rejected the Maastricht Treaty (also known as the Treaty on the European Union, orTEU, which founded the modern EU) in 1992 via referendum. That was changed after Denmark secured some opt-outs: tailored exceptions for existing members exempting them from participating in some integration projects. Perhaps the most famous “serial abuser” of opt-outs was the United Kingdom, which was famously granted exemptions from participating in both the Eurozone and the Schengen Area, two of the most well-known aspects of European integration. This “opt-out,” as currently enjoyed by three EU states (Denmark, Ireland, and Poland), lays the groundwork for formal divergence in integration among EU countries. Enhanced Cooperation: Multi-speed Europe in Practice Article 20 of the TEU stipulates that when at least nine member states participate in an area of “enhanced cooperation,” they can engage in such cooperation while making “use of its institutions and exercise those competences by applying relevant provisions of the Treaties” subject to limits of certain provisions laid down in Part Six, Title III of the Treaty on the Functioning of the EU (TFEU). With this article, “enhanced cooperation” became the official venue at which EU member states wishing for further integration among a subsector of the member states could do so. Unlike the opt-out option, new laws and integration projects under enhanced cooperation would not even become official EU acquis, meaning that future member states would not have to adopt these integration projects. In reality, despite much fear of its arrival, “multi-speed Europe” is, in practice, built within the constitutional body of the EU. Even though Article 20 enhanced cooperation should be “a last resort,” such cooperation has now spread to multiple areas and integration as a backup option is being used prolifically among EU member states. These include legal homogenization regarding marriage and divorce, unifying patent law in the EU, and establishing the European Public Prosecutor’s Office. As indicated above, there is already an emergence of a de-facto “avant-garde” core of 11 countries that participated in the existing formal enhanced cooperation agreements. A clear geographical divergence like the aforementioned historical divide between the EEC and the EFTA exists, with Western and Southern European states remaining more interested in the integration project than the more “Eurosceptic” Nordic and Eastern European states. National Veto: Origins of Multi-speed Frustration Article 20 of the TEU provided that enhanced cooperation is for periods when “the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole.” Time and seeming “impatience” may thus appear as the reason for multi-speed integration. However, what is truly behind such impatience is the required unanimity in many aspects of EU decisionmaking and the reasonable frustration by some of the more pro-European countries against any potential veto. Since the Treaty of Lisbon reformed the EU towards deeper integration, many institutions no longer require unanimity. In practice, 80% of legislation passed by the Council of the EU (an institution akin to the U.S. Senate, where member states are represented individually) is via “qualified majority vote” (QMV), a process that requires the approval of 55% of EU member states (15 out of 27) and member states representing at least 65% of the EU population to pass. Nevertheless, unanimity remains the format for many key decisionmaking processes, such as foreign and security policy, EU membership, and EU finances. Unfortunately, it is also in these critical institutions where the EU’s operation is most widely known by the public, magnifying the failure whenever a member state threatens a veto. Even though Hungary’s recent threat to veto EU sanctions against Russia has taken up much of the spotlight for such European failure, it is not just in foreign policy that EU integration has failed by unanimity. Consider the two failures mentioned in the introduction, one concerning EU external expansion and the other concerning EU internal expansion regarding Schengen and the Euro. Both processes currently require unanimity, which is the leading institutional reason behind these failures. Consider the much-maligned EU accession process for North Macedonia. Despite submitting its application back in 2004, Skopje suffered 16 years of stalling due to Greece’s veto over a naming dispute that was finally settled in 2020, granting North Macedonia’s much-coveted candidate status. However, Skopje then suffered another veto by neighboring Bulgaria over a disagreement regarding the cultural status of the North Macedonian language. Only this year, 18 years after their initial application, was North Macedonia able to start formal accession talks, which will take roughly another decade to complete. Schengen prospects for Romania and Bulgaria are even more ironic. 11 years after their first rejection from the Schengen Area in 2011, despite another European Parliament resolution,European Commission report, and Council of the EU presidency urging their admittance, Romania and Bulgaria once again face a veto from the Netherlands, which has a mere 3.3% of the EU population., Without institutional reform that does away with stringent unanimity, it is hard to imagine multi-speed Europe schemes such as enhanced cooperation not becoming more mainstream. Multi-speed No More? The Russian Invasion of Ukraine has provided a much-needed bolt of energy for the EU, revitalizing hopes for some EU federalists that the end of multi-speed Europe may be here. Ukraine’s fast-paced application process heralds this change. More concretely, German Chancellor Olaf Scholz has called for EU reform that will do away with unanimity on EU foreign policymaking and offeredGerman concessions that will also end unanimity on EU finance decisions. However, it may be too soon to consider multi-speed Europe a passing fad. With the recent election of hard-right Giorgia Meloni into power in Italy, Euroscepticism remains a consistent political power within the EU. Divergence in attitudes towards European integration is not going away.

About the author: Sarthak Gupta is an undergraduate law student at the Institute of Law, Nirma University, India. He is a staff writer and assistant editor at JURIST, University of Pittsburg, Pennsylvania. Image by Kasia Derenda available here. On October 7, the Polish Constitutional Tribunal (Tribunal) held in its K 3/21 ruling that the Constitution of Poland (Constitution) takes primacy over European Union (EU) treaties. The ruling raises questions about whether the EU can become more interwoven, protect its standards, and serve as a model for other nations looking to unite the bloc, or whether Poland can follow the footsteps of the United Kingdom (UK) and leave the EU. This article does not delve into the question of Polexit [ here, here, here, and here]. Rather, it argues that the Tribunal’s ruling is unconstitutional and structured on erroneous assertions and opinions of political power representatives. It further emphasizes the growing school of thought on de facto differentiation among Poland and Hungary against the EU. The Tribunal’s rulings and its deconstructive approach The prima facie issue before the tribunal was whether the Treaty on European Union (TEU) is in accordance with Poland’s Constitution. The Tribunal held that Article 1 of the TEU, read with Article 4/3, Article 2 and Article 19/1, of the TEU are incompatible with the Constitution. Article 1 is the foundational pillar of the EU, and Article 2 reinforces fundamental principles such as the rule of law, freedom, democracy, equality, and human rights protection. Article 4/3 encourages mutual appreciation in facilitating one another in carrying out treaty obligations. Article 19 enables the European Court of Justice (CJEU) to ensure that the law is respected in the interpretation and implementation of treaties. The rulings raise questions over the CJEU's jurisdiction and the primacy of EU laws. The question of the primacy of EU laws, which is not incorporated in the EU Treaties, traces back to the infamous 1964 Costa v. ENEL ruling, in which the CJEU ruled that if community law and domestic law conflict, then community law must prevail. While the notion of primacy is crucial, Member States have found it difficult to integrate EU laws into their own constitutional norms to achieve consistency in EU jurisdictions. Because the CJEU constantly and continuously interprets EU legislations, the Tribunal underlined that permission for the EU integration process is not unequivocal. The integration process is a cornerstone of European stability and prosperity because EU institutions have the authority to approve regulations and EU member states have pooled their sovereignty to differing extents. Judge Piotr Pszczółkowski’s dissenting opinion did in fact make reference to prior well-established precedent and to observe that the application only formally sought an interpretation of the Treaty on the Functioning of the European Union (TFEU). By examining the appointment procedure of EU judges with Polish constitutional norms, the Tribunal challenges CJEU's independence and neutrality. The Tribunal claims that the procedure governing the appointment of CJEU judges, as well as the potential of perpetual reappointments of their tenure, weakens the fundamental rule of law standards. However, the Tribunal failed to recognize that the CJEU judges’ reappointments depend on the consent of the Member States, and that the Article 255 Treaty on the Functioning of the European Union framework keeps the candidates strictly scrutinized. Furthermore, the Tribunal's oral rationale did not explain how the reappointments threaten the rule of law in itself. Interestingly, in May 2021, the European Court of Human Rights (ECHR) examined the Tribunal's structure in Xero Flor v. Poland, and held that the appointment of Judge Mariusz Muszynski, who was elected in 2015 by Poland’s new Parliament, violated the right to a legally established tribunal as established in Article 6 of the European Convention on Human Rights (Convention). Further, the judges whose appointments violated the Polish Constitution ruled on the legitimacy of appointments to the CJEU in the K 3/21 ruling. They cited the Polish Constitution’s Articles that regulate the appointment of domestic judges, specifically the judges of the Constitutional Tribunal, as a precedent. On the issue of the CJEU's jurisprudence on "reform" in Poland, the Tribunal stressed that EU institutions cannot presume competencies not vested on the EU. The CJEU should only interpret competencies that are expressly stated in the treaties. The CJEU's unprecedented breakthroughs beyond the purview of Article 1 of TEU, which enables European integration, should be considered as a violation of the conferral principle and Article 90 of the Polish Constitution. Thus, the Tribunal considered CJEU's case law on Article 19 of TEU, which formed in a spate of Poland-related judgements, ultra vires because it devalues Poland’s sovereignty and conflicts with Articles 2 and 8 of the Polish Constitution, given that Poland is a democratic state, and the Constitution is its supreme law. Since the TEU does not confer the CJEU competence to scrutinize national judicial institutions or judicial appointments, the Tribunal determined that CJEU's rulings do not fall within the primacy principle. Therefore, national courts and other national authorities in Poland don’t have to follow or implement the CJEU’s case law. The Tribunal, therefore, served the CJEU an intimation that any further ultra vires rulings would be rendered null and invalid. The substantial concern with such a dramatic approach is that neither the CJEU nor any other EU institution has ever interpreted Article 1 or Article 4/3 of the TEU in this sense. Furthermore, the Tribunal considered the CJEU's interpretation of Article 19 of the TEU as unconstitutional. The ultimate consequence of such ruling is that Polish courts would be autonomous to not apply the CJEU’s rulings on the interpretation of Article 19 of the TEU, which might question the sovereignty of Polish judicial institutions or compromise the competence of judicial appointments in Poland. The Question of Constitutionality in Tribunal’s ruling Poland’s ruling is the crescendo of an ongoing struggle over tolerance for EU values and principles, as well as the protection of state sovereignty. It illustrates how profoundly off from one another the EU and Polish authorities are. This is not the first time that the Tribunal hesitated to recognize EU Laws in conflict with the Polish Constitution and presented its ruling as a politically controlled Court. Notwithstanding, with the Prime Minister ignoring Article 188 of the Constitution, the Tribunal also ignored Article 188 of the Constitution and intended to consider the Prime Minister's application as though the TEU and Polish primary legislations were indeed in conflict. In this decision, the Tribunal has thrown off further legal miracles, circumventing two key roadblocks. First, both the Prime Minister's application and the Tribunal appear to have entirely underappreciated Article 9 of the Constitution, which asserts that Poland must respect binding international law and correlates with Article 8 in influencing the association between the Polish constitution and international law, which include EU treaties. Thus, it neglected the substance of recognized case law on addressing problems between the Polish constitution and EU legislation, including the K 18/04 [2005] verdict on the 2004 Accession Treaty's compliance with the Polish Constitution. The Application’s argument and the Tribunal’s interpretation asserted that according to Art. 19/1 TEU, the EU has no jurisdiction over the composition of the Polish judiciary and CJEU legal precedent predicated on Art. 19/1 TEU should not be binding on Polish courts in overturning domestic laws that CJEU determines inconsistent.These assertions are deeply misinterpreted. While EU law does not stipulate exactly how Member States should structure their judicial system, it does require domestic courts that adjudicate on EU law to be independent and devoid of disproportionate influence. Article 45 of the Polish Constitution articulates the same notion. Further, the Tribunal goes beyond its own jurisdiction, as well as the subject of the Prime Minister's application. As per the Tribunal, the apparent contradiction with the Polish Constitution arises due to the fact that EU legislation provided a framework for court systems to overlook the Constitution. With this assertion, the Tribunal has directly challenged the preliminary referral procedure in Article 267 TEU, which the appellant did not challenge. This essentially gives the Polish government carte blanche to reject CJEU rulings delivered in accordance to Polish court preliminary references. Lastly, it is also significant to note that the Tribunal, which is accountable for judicial scrutiny of Polish laws under Article 194 of the Constitution, is no longer an autonomous institution. The Tribunal's words and deeds in the last few years, such as its decisions in the abortion case, its multiple postponements of passing judgement in the matter of the Ombudsman's term duration, and the journalistic investigations into alliances between the Tribunal's leadership and the current administration, paint a clear understanding that the Tribunal is a politically controlled body. De Facto differentiation Poland and Hungary have been in conflict with EU institutions on a number of aspects since Poland’s conservative Law and Justice (PiS) party came to power in 2015. The PiS has systematically weakened the autonomy of Poland's Constitutional Court by replacing judges, forcing judges to retire early, and giving extensive powers. There have been disagreements over women's rights, LGBTQ+ rights, environmental protection, as well as the autonomy of the judiciary. When the European Parliament declared that the EU is an LGBTQ+ Freedom Zone, Poland took a distant approach and introduced itself as LGBTQ+ Free Zones and the Hungarian Parliament passed an anti-LGBTQ+ statute. Such deliberate and sustained efforts of non-compliance with EU laws have been termed as de facto differentiation. There have been only a few isolated incidents of member states interpreting EU legislation like a self-service restaurant. Even arrangements like Sweden's refusal to embrace the EU, despite being legally obligated to do so, are accepted. However, Poland and Hungary appear to have completely adopted this strategy, putting the EU's limits to the test and questioning its foundations. Following Brexit, Poland now challenges more explicitly the notion of the EU as a de facto federation, wherein the non-majoritarian institutions including the CJEU have ultimate word on the democratic principles in member states. Poland is not the first country to not recognize EU primacy and disrespect CJEU’s authority. Danish Supreme Court in Ajos, Czech Constitutional Court in Landtova, and Germany’s Bundesverfassungsgericht ruling last year have all taken so-called bold decisions. In other words, the EU is beset with a rule-of-law catastrophe. Traditionally, 'integration by law' was fundamental to the European vision, and the CJEU was a major institution advancing the integration, often prospering from what Erik Stein called "benign indifference by the powers that be and the mass media." Even when treaty-based European integration stopped in the 1960s and 1970s, "judicial integration" through the CJEU proceeded, including the famous 1964 ruling that EU law was superior. Conclusion The Tribunal ruling has sparked massive protest in Poland and has been criticized by member states, institutions, and EC President Ursula von der Leyen. The 26-retired judges of the Constitutional Tribunal also expressed serious concerns that it threatens to undermine the legal framework within which the EU functions, as well as the rule of law and protection for human rights, including rights of the LGBTQ+ Community in Poland. It is undeniable that K 3/21 has uncovered a potential weakness in the EU legal structure and cast a shadow on the EU's viability as a political and legal institution. Therefore, it is crucial for EU member states to step outside of their comfort bubble and explicitly declare that blatant resistance of CJEU rulings, particularly on issues pertaining to the bloc's structural foundations, are not accepted. In this viewpoint, the ruling may even be preferable to the EU. The mask has fallen, unveiling the underlying political intentions of the Polish would-be autocrats. For those who want to protect the EU's constitutional order, the Polish authorities have put the ball in their court. The Commission must establish that the Tribunal’s ruling has a bearing on the EU budget's efficient financial administration or has a relevant correlation to preserving EU financial interests underneath the Rule of Law Conditionality Regulation.