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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.

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: 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.

About the author: Priyal Sepaha is an LLM graduate from the Geneva Academy of International Humanitarian Law and Human Rights (2021-22). Image by Maureen available here. In December 2003, the United Nations General Assembly by Resolution ES-10/14 requested the International Court of Justice (the “ICJ” or the “Court”) for an advisory opinion on the legal consequences of the wall built by Israel the Occupied Palestinian Territory (OPT) in the light of international law principles. This blog discusses the right to self-defense as justification of International Humanitarian Law (“IHL”) and International Human Rights Law (“IHRL”) violations. In light of the International Court of Justice’s Wall Opinion, we discuss (1) whether self-defense is a justification for violations of IHL (2) whether self-defense is a justification for IHRL violations, (3) the ICJ opinion, and (4) the author’s opinion with concluding remarks. Before delving deeper into the question, it is crucial to address how the ICJ classified the conflict and applied the law in the Wall Opinion. The conflict in question was an international armed conflict between Israel and the Arab States, which consisted of Egypt and Jordan. Article 51 of the UN Charter provides the right to self-defense as an exception to Article 2(4) refraining “threat or use of force against the territorial integrity,” also called “jus contra bellum.” The provision‘s text suggests that states have an inherent right to self-defense against armed attacks. Additionally, the UN Security Council (“UNSC”) Resolutions 1368 and 1373 (2001), passed following the 9/11 attacks, also discuss the right to self-defense in terrorist attacks and combat all forms of terrorism. However, when a state exercises its right to self-defense in an armed conflict, customary international law, as reflected in state practice, shows that the rules of IHL and minimum human rights standards must be respected. Self-Defense and IHL The applicable legal regimes before and during armed conflicts are different. Jus ad bellum consists of principles applicable when states “may engage” in an armed conflict or resort to the use of armed force. On the other hand, jus in bello refers to the situation where the applicable law regulates the conduct of parties ‘engaging’ in an armed conflict (also known as IHL). Self-defense falls under the jus ad bellum regime. IHL governs rules pertaining to jus in bello. The two regimes should not be merged, especially concerning the purpose of self-defense because “IHL cannot be developed or interpreted in a way that makes it impossible to achieve those purposes.” This divide implies that no jus ad bellum arguments may be used to interpret IHL, and that the rules of IHL will not be made to render jus ad bellum impossible to implement. Apparently, “self-defense does not preclude the wrongfulness of conduct in all cases or with respect to all obligations.” This means that the Geneva Conventions of 1949 and customary international humanitarian law still hold their value when a state acts in self-defense in an armed conflict. In conclusion, an act of self-defense (jus ad bellum) must be consistent with applicable legal instruments. It must not be used to justify IHL violations (jus in bello) owing to the divide between the two regimes. Self-Defense and IHRL It is undisputed that self-defense is an exception to the prohibition of the use of force in jus ad bellum. However, when exercising this inherent right, states must pass the Caroline test, a customary law principle that lays conditions of “necessity of self-defense, instant overwhelming, leaving no choice of means, and no movement for deliberation.” Since self-defense must be “that military action necessary and appropriate to repel an attack,” a state exercising this right must comply with the principles of necessity and proportionality. This requirement is also held by the ICJ in Nicaragua and Nuclear Weapons and it has now been accepted as customary law. Additionally, states exercising the right of self-defense must consider the derogation measures and non-derogable rights mentioned in the applicable human rights treaties. They must ensure that actions taken in self-defense “must be the least intrusive instrument amongst those which might achieve the desired result.” Thus, self-defense cannot justify IHRL violations since it cannot preclude the wrongfulness of conduct. Opinion of the ICJ The ICJ, relying on the Nicaragua judgement, opined that the right to self-defense must be exercised only against an armed attack by another state. Since Israel did not claim that “the attacks against it are imputable to a foreign State,” Article 51 was held to be irrelevant. Additionally, the ICJ held that Israel could not evoke the right to self-defense with the support of UNSC resolutions 1368 (2001) and 1373 (2001) because Israel was the occupying power and the wall was “within, and not outside, that [occupied Palestinian] territory.” Regarding the argument on the state of necessity and whether it can preclude the wrongfulness of the wall construction, the ICJ relied on the decision in Gabcíkovo-Nagymaros Project, where it held that this defense “can only be invoked under certain strictly defined conditions…the State concerned is not the sole judge of whether those conditions have been met.” Finally, it rejected Israel’s claim because the route chosen was not the only means to safeguard the interests of Israel and it violated non-derogable rights under the ICCPR (Article 12(3)) and ICESCR (Article 4). Analysis and Conclusion In view of the present case, two fundamental comments are worth noting: A restrictive interpretation of self-defense Though the ICJ’s conclusion that Israel’s claim of the right to self-defense was incompatible with international law principles, the Court’s interpretation of self-defense was rather restrictive due to heavy reliance on the Nicaragua judgment. The dismissal of Israel’s claim solely relied upon the absence of armed attack by one state against another state. However, the text of Article 51 does not specify that the right to self-defense applies only in cases of an armed attack against other states. Moreover, Israel’s self-defense argument rests upon UNSC resolutions 1373 and 1368, which discuss “threats to international peace and security caused by terrorist acts” without placing a requirement on the threat originating from a state. Even though this assessment would not have changed the Court’s ultimate decision since the resolutions cover “international” threats and Israel does not claim that the same emanate from outside; the Court, here, missed an opportunity to interpret the legality and limits of self-defense according to the UNSC Resolutions which conformed to the relevant emerging trends of conflicts. The separate opinion of Judge Koojimans also expressed that even if the right to self-defense relates to international phenomena, the Court “regrettably by-passed this new element…which marks undeniably a new approach to the concept of self-defense.” Merging the regimes of jus ad bellum and jus in bello Since Israel’s arguments were based on UNSC Resolutions, it is worth noting at this point that the “UN Security Council…and its resolutions must be interpreted whenever possible in a manner compatible with IHL….a State exercising its jus ad bellum by using force in self-defense must comply with IHL..” The ICJ, while assessing Israel’s claim of self-defense in light of IHL, merged the regimes of jus ad bellum with jus in bello by determining whether the IHL violations could be justified under self-defense. A more favorable response to this issue could be that, due to jus ad bellum and jus in bello being separate regimes, self-defense (falling under jus ad bellum) cannot justify IHL violations (jus in bello). In conclusion, even though the Court could have dealt with the argument on the doctrine of self-defense and state of necessity expansively, it is uncontroversial that the notion of self-defense is not a carte blanche for indiscriminate attacks and measures and certainly not justification for violations of IHL and IHRL.

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.

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.

Dr. Atul Alexander is an Assistant Professor of Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata, and Faculty Advisor of the International Law Student Association-WBNUJS Chapter. He was short-listed as a visiting research scholar at the Stockholm Center for International Law, U.S Naval War College, United States. Dr. Atul Alexander has written widely on International Law, and some of his works were cited by the New York Times and South China Morning Post. Image by Frank van Beek available here. Third-party intervention in the International Court of Justice (the “ICJ”) is increasingly gaining significance. Recently, six states, namely Latvia, Lithuania, United Kingdom, New Zealand, US and Germany, filed applications for intervention under Art. 63 of the ICJ Statute concerning the Russia-Ukraine conflict for which the ICJ is yet to reach a conclusion. The author argues that Third Party intervention through Art. 63 remains unexplored because of the narrow interpretation of the ICJ; hence, the current case (Russia-Ukraine) presents a unique opportunity to shed light on this unexplored aspect. Third-Party Intervention Under Article 63 Art. 63 of the ICJ Statute lays down the procedure for third-party intervention involving “…construction of a convention to which states other than those concerned in the case are parties in question”. Moreover, the construction will be equally binding upon the intervening states. In addition, Art. 82 Rules of the Court (1978) require the states intervening to file a declaration, which may be under exceptional circumstances at any stage in the case. Intervention ordinarily occurs in the merit phase rather than the jurisdictional phase, meaning the ICJ will only permit third-state intervention if it establishes jurisdiction. According to Rosenne, “the purpose of Art. 63 is not to protect the legal interest which may be affected by the decision in the case, but the interpretation of the treaty in question.” Although the provision provides broad discretion for states to intervene, it has been successfully invoked a mere four times. Third-Party Intervention Under Article 63: Voices from PCIJ and ICJ One of the earliest PCIJ cases on third-party intervention is the SS Wimbledon, where the PCIJ accepted the application of Poland. The PCIJ observed that “[t]he suit involved the interpretation of certain clauses of the Treaty of Versailles and the Polish Republic is one of the states which are parties to this treaty.” The first case in the ICJ is the Haya de la Torre, where Cuba made a declaration for intervention under the 1928 Havana Convention on Asylum. Peru argued that the application was time-barred and amounted to an appeal from the previous Asylum case. However, the court considered that the intervention of Cuba was related to the proceedings’ subject matter and hence outside the ambit of its earlier judgment. In the subsequent case of Nicaragua v. United States of America, Nicaragua approached the ICJ, alleging that the United States violated the principles of non-use of force and non-intervention under treaties and customary international law. El Salvador sought to intervene, contending that the ICJ lacked jurisdiction. In its application, it made procedural and substantive claims under Article 36(2) of the ICJ Statute and 51 UN Charter. The ICJ rejected the intervention, as it did not relate to the proceedings’ subject matter, and the substantive question relating to the convention’s interpretation and application was not admitted as ‘‘…it relate[d] to the proceedings’ current phase between Nicaragua and the United States.” Art. 63 was not construed as an absolute right in the above-mentioned cases, and it squarely depends on the ICJ’s construction. El Salvador’s intervention was to contest the jurisdiction and further, “it explained that the Court couldn’t rule on Nicaragua’s application without considering the legality of any armed actions in which the United States had engaged in and accordingly the rights of the United States and El Salvador to engage in legitimate collective self-defense.” The ICJ considered the application premature because it related to the merits. However, the ICJ’s views are contrary to its travaux préparatoires, as the provision’s wording makes it clear that whenever the construction of the convention is involved, it applies to all the phases of the proceedings. In the Nuclear Tests (Request for Examination) case, New Zealand filed an application on the proposed action announced by France, which will, if carried out, affect the basis of the Judgment rendered by the ICJ in the Nuclear Tests (New Zealand v. France) case, ie. “France would conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995’; several Pacific Island states intervened under Art. 63. The intervention was premised on the 1986 Noumea Convention. The convention pertains to environmental protection in the South Pacific region. The ICJ did not hear the application because New Zealand’s declaration did not fall within the scope of the Judgment in the Nuclear Test Case. Further, in the Whaling case, in the context of New Zealand’s intervention, the ICJ observed that "the fact that intervention under Article 63 of the Statute is of right is not sufficient to confer ipso facto on the declarant state the status of intervener." Although the ICJ had several opportunities to clarify the scope of Art. 63, it missed the bus because of its narrow interpretation. The Russia-Ukraine conflict is a rare instance of mass intervention, thus providing a unique opportunity for the ICJ to clarify the legal uncertainties. Third-Party Intervention in Russia-Ukraine The ICJ receives applications for intervention in advisory opinions, but mass participation in contentious cases is rare. In the case of Russia-Ukraine, the ICJ’s provisional measures pertain to disputes concerning the interpretation, application, and fulfilment of the Genocide Convention 1948. Ukraine contended that the Russian Federation carried out special operations in Luhansk and Donetsk oblasts under the false pretext of prevention and punishment of Genocide. Further, Ukraine argued that no act of Genocide as defined under the Genocide Convention (Article III) is committed in the disputed regions. The ICJ observed that “[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” Subsequently, the European Union (the “EU”) issued a joint statement to support Ukraine. Six states (Latvia, Lithuania, UK, New Zealand, US, and Germany) then filed applications to intervene by invoking specific provisions of the Genocide Convention. The intervention broadly covers both jurisdiction and merits. According to the declarations, nothing prevents the ICJ from deciding on the jurisdictional issue in the context of third-party intervention. Correspondingly, for constructing the jurisdiction, Latvia relies on Art. 1 and IX of the Genocide Convention regarding the non-violation complaint. Latvia’s contention is for a broad interpretation of Article IX. Latvia states, “[t]he jurisdiction granted to the Court by Article IX includes disputes in which a state alleges that another state has committed genocide.” Additionally, Art. 1 of the Genocide Convention’s interpretation is not to be abused; hence the obligation under Art. 1 of the Genocide Convention requires good faith performance in accordance with the provisions of the Genocide Convention. In the merit aspect, the use of force cannot justify the obligation to punish and prevent genocide. Instead, the obligation to punish and prevent Genocide should operate within the confines of international law. The UK maintains that there is nothing in Art. IX of the Genocide Convention to preclude the jurisdiction of the ICJ, as the term “dispute” has a wide meaning. Also, the broad interpretation of the Genocide Convention is built into the convention. The UK argued that “[t]he scope of conduct that Article I allows or requires is a matter concerning ‘the interpretation, application or fulfillment’ of this provision and is therefore within the scope of the jurisdiction conferred by Article IX of the Convention.” Concerning the merits, the interpretation of Art. II of the Genocide Convention ought to be in terms of genocidal intent and action, properly characterized as dolus specialis. The interpretation of Art. 1 of the Genocide Convention, is to be done with due diligence, based on all the available information. According to Germany, the intervention of the convention is not limited to the jurisdictional phase but all the phases of a given case, as the dispute involves the “fulfillment” of the convention’s obligation. What to expect? The ICJ is reluctant to allow states to intervene while the question of jurisdiction and admissibility is pending. It is precisely this that would have dissuaded the Maldives, Canada, and Netherlands from intervening when the preliminary objection was pending in The Gambia v Myanmar. Since Russia has not participated in the proceedings, as Brian Mc Garry argues, “the Court has not bifurcated the proceedings into separate phases on jurisdiction and the merits. This is potentially problematic for the intervention’s prospect if questions of jurisdiction or admissibility remain pending until the Court renders its sole Judgment in the case, then hewing to its practice would effectively foreclose intervention.” One of the ways to overcome this conundrum could be to formulate (Art. 63 Declaration) as exclusively confined to the question of jurisdiction, this can be inferred from the EU’s Joint statement, which reads: “We strongly believe that this is a matter rightfully brought to the ICJ.” This can be alternative means to overcome ICJ’s reasoning for deferring intervention. The present declarations are filed on the question of jurisdiction and merits. Hence it would be interesting to witness the ICJ’s standpoint on this matter. However, nothing in the requirement limits the question to jurisdiction or merits. The preceding cases on Art. 63 don’t clarify this issue much. Nevertheless, the proliferation of multilateral treaties might lead to greater recourse through Art. 63. The Ukraine conflict provides ample prospects for the ICJ to shed light on Art. 63’s scope. However, the intervention of the six states in the jurisdictional phase is akin to the Nicaragua jurisprudence, where intervention under Art. 63 should mean that the ICJ has to possess jurisdiction on which it is yet to decide, but this runs contrary to Art. 82 of the Rules of Court, which applies to all phases.

Pratyush Singh is a third year student of the B.A. LL.B (Hons.) programme at National Law School of India University, Bangalore. Image by naturalflow available here. In 2016, the Arbitral Tribunal pronounced the South China Sea Verdict in The Republic of the Philippines v. The People’s Republic of China (the “South China Sea Verdict”). While the judgment was well received around the world for promoting the freedom to navigate, there were aspects of the verdict that went ignored. One of them was the status of maritime features, which are important because they help generate exclusive economic zone (“EEZ") rights. Regarding this issue, the tribunal concluded that none of the contested features could be categorized as islands, thereby denying China a vast amount of EEZ rights. While a lot has been said about the specific impact of this decision, this paper attempts to showcase how the reasoning of the tribunal itself can lead to the status of islands around the world, especially India, being put up in question. To that end, this article first provides a brief overview of the decision.Second, it delineates the reasons why the rationale put forward by the tribunal lacks legal standing. Third, it showcases how the application of the verdict’s rationale can adversely impact the status of some islands of the Union Territory of Lakshadweep. The UNCLOS Verdict on South China Sea In 2013, due to the People’s Republic of China (the “China”) claiming control over some contentious islands in the South China Sea, the Philippines (the “Philippines”) initiated arbitral proceedings against China, questioning the legality of such activities. Based on the claims put forward by the Philippines, the findings of the tribunal can be summarized into four groups. First, with respect to China’s substantial claim over South China under its ‘nine-dash line,’ the tribunal stated that China’s claim of historic rights is not consonant with the UN Convention on the Law of the Sea (“UNCLOS”). Second, the tribunal opined that by blocking the Philippines’ access to fishing and extracting hydrocarbons near the area around Scarborough Shoal, China had violated the Philippines’ sovereignty over its EEZ. The tribunal also observed that constructing artificial islands near the Spratly Islands was a violation of Articles 192 and 194 of UNCLOS because such activities caused long lasting damage to the marine environment. Third, the tribunal accepted the Philippines’ contention that China’s construction of artificial islands had “aggravated and extended” the dispute resolution process. And fourth, the tribunal stated none of the disputed geographical features could be categorized as islands under Article 121 of the UNCLOS, and hence none of them would generate an additional EEZ. The curious case of Article 121(3) Article 121(3) of UNCLOS states that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” In the South China Sea verdict, the tribunal used this provision to opine that all the contested land features fell under the category of “rocks” and thus would not give way to any new EEZ for China. This conclusion was important as the tribunal had initially declared that considering all of the land features as part of the Philippines’ EEZ “would require the Tribunal to rule out the possibility that any feature claimed by China could generate an entitlement to an exclusive economic zone that would overlap that of the Philippines.” VCLT While interpreting Article 121(3), the tribunal stated that besides observing the text and objective of the provision as envisaged by Article 31 of the Vienna Convention on the Law of Treaties (the “VCLT”), it would also look at the travaux préparatoires (preparatory works), which is part of Article 32 of the VCLT. To a layman, this would give a perception that both Articles hold equal value and can be applied simultaneously. However, the travaux préparatoires under Article 32 is not a primary but a supplementary means of interpretation, which clarifies Article 31 when the ordinary meaning of the text under Article 31 leads to results that are vague in nature. The Permanent Court of International Justice undertook a similar approach as was undertaken in the landmark Lotus Case, wherein the Court stated that if the provision of law is clear in its meaning, then taking recourse to its preparation and negotiation is a redundant exercise. Even if we accept that the tribunal took a valid approach in applying both Article 31 and Article 32, the tribunal did not apply the law correctly, as discussed in the next section. Interpretation of Terms Article 121(3) uses the term “rocks” as opposed to other provisions, which use the term “islands.” The tribunal evaded this distinction by stating that any attempt to crystallise the distinction between the two terms failed during the negotiation of UNCLOS. However, going back to their own approach with travaux préparatoires, they failed to take cognizance of the fact that based on the drafting history, most drafters had looked at features such as size and composition as the differentiating factors between the “high-tide features.” The second contentious interpretation was of the term “human habitation.” While interpreting the term, the tribunal first relied upon the meaning provided by the Oxford Dictionary but then included a qualitative element. Under the qualitative element, the tribunal stated that the term implies a long-term natural presence of humans in a stable community. It must be noted that there is no legal ground to impose such a high standard, when the text of Article 121(3) provides no such requirement. Finally, the tribunal suggested that the phrase “economic life of their own “means that the land feature must be able to sustain an “independent economic life” without being provided resources from the outside world. Jonathan Charney argues that until the piece of land provides some resources that people can exploit and generate revenue from, it should be within the ambit of “economic life.” Other commentators have even gone so far as to say that any form of economic activity, for example,s even a lighthouse, should fall within the bracket of “economic life.” Coming to the instant case, the tribunal remarked that the mere presence of some fisherman around the rock would not amount to an “economic life of their own.” Purpose of the Provision While analyzing the purpose of Article 121(3), the tribunal stated that the provision helps prevent states from amassing maritime entitlements for tiny or potentially distant features of the land. Once again, no textual basis supported the tribunal’s conclusion. Such interpretation is also not in harmony with the existing control by the states over tiny features of the land. For example, France claims sovereignty over the tiny island of Tromelin, which is located more than 7000 km away from it in the Indian Ocean. Lastly, the tribunal referred to the negotiations of the Seabed Committee to remark that the overall effect of Article 121(3) does not grant EEZ rights to uninhabited islands. Such interpretation actively disregards the nuance between ‘inhabited’ and the ‘capacity to inhabit.’ The latter is relevant to the Article. For example, in Denmark v. Norway (Jan Mayen Case), even though the contested land feature (a scientific outpost) had been abandoned after some attempts at mining, the International Court of Justice took into account that it has factors that can sustain human beings, categorizing the land feature as an island. The entire line of reasoning followed by the tribunal seems to have ignored years of state practice such as the Elizabeth Islands for Australia or Mathew Island for France. How can it impact India? The tribunal’s standard for an island can be summarized as: first, capable of sustenance without the help provided from outside, second, the economic life must not be merely dependent on the water body around it but must have an economic identity of its own, and third, it should be inhabited by a community. Consider the example of Lakshadweep. It is a union territory of India which constitutes a group of 36 islands in the Indian Ocean region. While in itself it only occupies 32 sq. kms, its strategic location provides India with 4,00,000 sq. kms of EEZ. Hence, any change in the status of any of the islands would have a significant impact on India’s political and economical interests. The problem lies in the fact that the tribunal’s reasoning deems many islands of Lakshadweep as ‘rocks’ under Article 121(3). Firstly, as noted in the Lakshadweep Development Report, the typology of the soil and the scarce supply of fresh water severely restrict Lakshadweep from being self-reliant. Secondly, like in the South China Sea verdict, the eleven islands of Lakshadweep are primarily dependent on fishing activities and thus do not form a part of an economic activity, which is not oriented around just the water body. Suheli Par (which is formed out of three islands, namely Valiyakara, Cheriyakara, and Indira-Shastri Dweep) has some fishing activities nearby but is completely uninhabited otherwise, just like 17 other islands of Lakshadweep. The tribunal does not consider any recourse regarding the size of the island as relevant. Having completely failed the criteria put for the tribunal in the South China decision, the status of these islands can also be easily challenged. This becomes of extreme importance with the emergence of events like a US warship sailing within India’s EEZ of India near the Lakshadweep islands. Conclusion While the Indian Government may have supported the South China Sea verdict, it warrants a deeper inspection. Some facets of the judgment are obviously in tandem with the inherent principles of international law. However, that should not blind us to some subtle principles pushed through these judgments, including the categorization of islands as "rocks." This paper looked into the reasoning provided by the tribunal and how it can have broader ramifications if applied to the islands in India and the world at large. Such interpretations should be challenged even when the tribunal unequally applies them to the eastern countries.

Sohaima Khilji (J.D. Candidate, Class of 2025) is a contributor. Her interests include human rights, international law, and tech law. Sohaima graduated from Brandeis University with a double major in History and International Studies. Before law school, Sohaima worked as a Corps member for CityYear Los Angeles and JusticeCorps Los Angeles. She is a native Urdu speaker. BACKGROUND The worst floods in Pakistan's recent history began on June 14, 2022, and the country is still facing severe long-term consequences. Entire villages were washed away, 1700 people died, and about 12,867 individuals were injured. These torrents have displaced 33 million people, about 10 million of whom are children who require nutrition and health services. These deluges are a direct product of worsening climate change. Pakistan is home to 7200 glaciers and record heat waves that result in torrential downpours along the Indus River. Melting mountain ice sheets, paired with a heavier monsoon season, have contributed to a previously unseen intensity of flooding in Pakistan. The international community's slow response in addressing the multitude of issues that Pakistan has faced in the aftermath of these catastrophes raises the question of whether the devastating impacts of global warming will change international law to more effectively address natural disasters. INTERNATIONAL LAW AND NATURAL DISASTERS Currently, the Geneva Convention does not apply to natural disasters, as its scope is limited to armed conflicts. The emerging field of International disaster response law (IDRL) aims to fill this gap. A key player in this work is the International Federation of Red Cross and Crescent Societies (IFRC). IFRC has created a document that provides “guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance,” which were adopted in November 2007 by the countries that signed on to the Geneva Convention. However, they are not legally binding and simply function as "recommendations." They call for: - expedited visa processing and customs clearance for relief personnel, goods, and equipment, - facilitation of relief transport, - exemptions from taxes, duties, and fees on relief activities, and - simplified means for humanitarian organizations to acquire temporary domestic legal personality to operate legally in affected countries. As climate change-fueled disasters intensify, the relevance and need for implementing these guidelines increase. Some United Nations (UN) human rights experts have argued that"the global climate crisis has contributed to these terrible floods and caused unprecedented human suffering in Pakistan. [Therefore,] all countries that have contributed to the global climate crisis have an international obligation to assist Pakistan with its recovery." The Prime Minister of Pakistan, Shabaz Sharif, echoed this sentiment when he said that he would seek "climate justice" from the international community. Some commentators, including Sharif, have noted that the devastation caused by the flooding in Pakistan is disproportionately the product of pollution by larger, richer countries. Pakistan is responsible for less than 1% of global greenhouse gas emissions. This idea of rectifying "climate injustice" implies an international responsibility to aid in the aftermath of climate change-fueled natural disasters such as the Pakistan Floods. Critics say that international aid is not enough to rectify the situation; instead, the international community should also consider climate reparations from the global North. The idea of internationally shared responsibility for climate change-fueled natural disasters begs the question of whether there will be a significant change in international law regarding natural disaster response. THE RIGHTS OF ENVIRONMENTAL MIGRANTS The 30 million displaced individuals from the Pakistan Floods further the question of global responsibility in assisting environmental migrants. Currently, environmental migrants are not covered under the current definition of "refugee" by UN convention. The UN defines a refugee as "someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion." Since environmental migrants do not fit under this narrow definition, they are not entitled to the same legal protection as refugees. The current interpretation does not address people who are internally displaced or individuals displaced due to climate-related issues. Thus, there is not a straightforward legal solution to environmental migrants' rights as there is for refugees. Refugees are allowed to seek and enjoy asylum in other countries. However, Pakistan's 30 million displaced individuals are not entitled to those kinds of rights under international law since they are both internally displaced and displaced due to climate-related issues. The lack of consensus on what an environmental migrant is and what liberties they enjoy contributed to the fragmented global response in Pakistan. CONCLUSION The gap in international law addressing responses to natural disasters plays a role in the fragmented international response to Pakistan’s devastating floods. These catastrophes bring up a series of questions that could dramatically alter international law. Specifically, with the increase in catastrophes fueled by climate change, the international community must address the injustice faced by nations that have not contributed to global warming but still endure its worst effects. However, because the Geneva Convention does not apply to natural disasters and UN precedent does not address "environmental migrants" in its definition of refugees, it is no surprise that the international response to disasters like the Pakistan Floods is fragmented and slow. This unfairness raises a critical question: should countries that contribute significantly to greenhouse gas emissions be responsible for taking in refugees from future natural disasters? The international community must answer now.

Mansi Srivastava is a Judicial Law Clerk-cum-Legal Researcher with HMJ Prathiba M. Singh at the Delhi High Court, where she assists on a wide variety of areas such as conflict of laws, global data privacy laws, constitutional laws, labour laws, intellectual property laws, and general civil/criminal procedure. She is a member of the Association for Young International Criminal Lawyers (AYICL) and is currently also assisting the Centre for International Law Research and Policy (CILRAP) with their Second Edition of the treatise, ‘Historical Origins of International Criminal Law: Volumes 1-4’. Prior to this, she was an Associate with L&L Partners, advising the India Government and foreign investors on clean energy and infrastructure projects. She graduated from National Law University, Jodhpur in 2019, with a B.A., LL.B.(Hons.) with the late Ms. Pranita Mehta Memorial Gold Medal for Outstanding Mooting Achievements. Her areas of research interest include public international law, international criminal and humanitarian law, international relations, and global data privacy laws vis-à-vis freedom of speech and expression. Image by Marcin Jozwiak available here. “[T]he critical moment may not come when the Court first begins to investigate and pursue charges. Instead, it may come later, after which the ICC’s work may already have helped to stigmatize the wrongdoers, draw international attention to a difficult situation, and catalyze increased political pressure that is conducive to negotiation.” -Complementarity in Crisis This excerpt highlights an increasingly vital function of the first permanent International Criminal Court (ICC) in the world. The Rome Statute recognizes prosecutorial practices along with transitional justice, toward a holistic rebuilding of post-conflict societies. In this vein, Article 53 of the Rome Statute stipulates that an investigation may be forgone if it “would not serve the interests of justice.” Article 75 further recognizes symbolic and restorative forms of reparations before the ICC. The ICC Office of the Prosecutor also expresses support for capacity-building, traditional justice, and institutional reforms. The ICC therefore blurs the lines between retributive, deterrent, and transitional justice, making itself potentially far more effective than a pure prosecutorial mechanism. Therefore, traditional prosecution before the ICC for the newly proposed crime of ecocide should incorporate transitional justice mechanisms to address the urgent issue of environmental damage. Scholars have studied both definitional gaps and practical prosecutorial challenges related to the newly proposed crime of ecocide. Consequently, there are proposals for a more eco-centric definition, a clarification of mens rea requirements, forensic practices to aid evidence presentation for ecocide, and the addition of corporate criminal liability. However, even the foremost critics of the legal concept of ecocide support some movement toward the criminalization of environmental damage, albeit in different ways. Cognizant of the ongoing work in addressing challenges to the Rome Statute’s incorporation of ecocide, this post does not seek to propose more definitional changes. Instead, it takes a step further – considering ecocide as an existing crime in the Rome Statute in some form – to propose the deployment of complementary Transitional Justice Mechanisms (TJMs) to make the criminalization of ecocide significantly more effective. The Role of Transitional Justice Mechanisms in Vulnerable Communities At the outset, TJMs are defined as judicial or non-judicial measures to address rights violations and establish rule of law in societies emerging from repressive regimes. Such mechanisms serve to achieve accountability, reconciliation, and redress for the violation of victims’ rights. Indigenous groups, women, and other vulnerable groups that are known to be disproportionately impacted by environmental destruction. Therefore, TJMs would be instrumental in societies where social and political systems have failed to prevent and prosecute environmental destruction. To understand the precise role of TJMs in addressing environmental destruction, this post reviews the purported objectives of criminalizing ecocide. These objectives identify the gaps in international environmental laws, demonstrating the need for the proposal of ecocide. Such objectives are then mapped against corresponding TJMs that would help achieve the objectives in conjunction with prosecution for ecocide. Applicable Transitional Justice Mechanisms for Tackling Environmental Damage Ecocide has been proposed as a fifth crime to address various issues plaguing international environmental law (IEL), as per the UN Report on Gaps in IEL. These issues include (i) lack of harmonized IEL principles; (ii) lack of robust enforcement and implementation procedures; (iii) lack of political will and inadequate engagement of stakeholders and civil society; (iv) limited reporting, knowledge gaps, and inadequacy of data due to high costs of sampling and analysis and lack of scientific experts, especially in developing countries; and (v) absence of review mechanisms and global liability and compensation regimes (such as the specific exclusion of liability and compensation for climate damage from the Paris Agreement). In this situation, the most useful tools of TJMs applied ecocide are as follows: People’s Tribunals: Especially in cases of environmental destruction where there are obstacles like lack of political will, scant stakeholder engagement, and data inadequacy, tribunals like the International Monsanto Tribunal and Permanent People’s Tribunal provide platforms for vulnerable communities to reclaim their rights. Relatively free from political influence, tribunals enable people’s participation in the justice system, allow critiques of crimes, and provide accurate recommendations even if perpetrated by powerful corporate actors, state organs, or state-enabled actors (such as through licensing regimes). Driven by private citizens and civil society organizations, acting as judges, investigators, and witnesses, people’s tribunals further free public discourse. Moreover, such tribunals are better positioned to gather local evidence without the ICC’s access barriers. Most recently, the Uyghur Tribunal gathered extensive evidence, conducted a trial, and decided that China was committing genocide. Despite the ICC’s refusal to open an investigation, this successful tribunal illustrates an effective people’s tribunal, where civil society actors and victims, cooperating with international legal experts, create a record of evidence and assist the judiciary with preliminary assessments of claims. People’s tribunals also factor indigenous practices into the restorative process, as the traditionally environmentally sustainable practices of indigenous communities become especially relevant in cases of environmental damage. This inclusiveness would contribute immensely towards strengthening the prosecution of ecocide with proper evidence and victim participation. Reparations and Liability Regime: As noted by the UN Report on Gaps in IEL, the lack of harmonized principles of liability and knowledge transfer is a crucial gap in IEL. Capacity-building, technological support, and legislative reforms toward a more environmentally conscious regime are crucial in societies destroyed by environmental damages. Obtaining meaningful reparations is a primary objective of both the ICC and TJMs. Article 75 of the Rome Statute is pivotal in its recognition of non-monetary compensations such as the return of property, rehabilitation, and symbolic reparations. Considering that most perpetrators of ecocide are corporate entities with substantial resources, TJMs could enable a reparations regime where such perpetrators contribute to rebuilding society and providing resources. These reparations, unlike the imprisonment of some figureheads, could actually impact the victims’ lives. Therefore, this provision would lead to meaningful reparations for victims and a stronger civil liability regime. Further, the unindicted perpetrator provisions under Article 25 of the Rome Statute would bring other responsible actors, like participants in the supply chain, to the forefront. For instance, companies selling LCDs in a developed country, source the components through various suppliers and distributors, who ultimately use manufacturers of LCDs in a developing country, emitting fluorinated greenhouse gases in such countries. Thus, a comprehensive and tailored reparations and liability regime for ecocide provided through the Rome Statute, elicits stronger domestic supervisory and regulatory mechanisms to encourage state responsibility and systemic changes in the environmental legal and policy framework. Such international provisions supplemented by stronger domestic support, would make commissions like the UNCCC, which held Iraq responsible for environmental damage in Kuwait, more of standing institutions instead of ad hoc inventions. Transforming such commissions into standing institutions would strengthen the deterrent effect on potential perpetrators, who currently act without fear of facing any certain punishment. Therefore, tying up the loose ends of the reparations regime for environmental damage is crucial to provide effective and consistent remedies, as also deter further damage. National Legal Reforms: One of the fundamental criticisms about the proposed definition of ecocide is that it is anthropocentric, meaning it shields environmental damage from prosecution to the extent that such damage is required for some socially or economically beneficial activities. Therefore, the crime subordinates environmental protection to human benefits. TJMs can encourage ecocentrism. For instance, national awareness of ecocide could be used to accord a legal personality to natural resources, as was achieved for the Vilcabamba River in Ecuador to secure a constitutional injunction. This would be instrumental in developing a collective conscience that ecocide is not victimless and enabling ecocentric reparations. Evidentiary Benefits: A persistent concern in prosecuting environmental crimes is the lack of sophisticated scientific/forensic evidence gathering mechanisms, especially in developing economies, which are the most impacted by environmental damages. With ecocide included in the Rome Statute, the ICC’s scientific and forensic practices for evidence collection and the scientific experts could be lent out domestically to provide investigative skills and technologies. This would enable the localized collection of data, as well as faster identification of damages by local organizations with more sophisticated technologies. Recent proposals to the ICC for improvements to aid in more scientific and forensic evidence collection would also provide effective investigations by knowledge transfer in domestic jurisdictions, thus easing the prosecutorial burden in the long run. Conclusion Therefore, ICC and TJMs stand to mutually benefit from each other, not only by criminal prosecutions but also by reformative and restorative justice. Hybrid mechanisms, where domestic and international laws are synergized, have already demonstrated improved results such as the Extraordinary Chambers in the Courts of Cambodia and the Columbian Special Jurisdiction for Peace. Such a mandate would pave the way for sweeping changes in societies’ responses to environmental issues. A version of this text is originally hosted on Völkerrechtsblog.

Alex MacLennan (J.D. Candidate, Class of 2024) is a contributor. His interests include international and comparative law, US and foreign elections, history, and economic policy. Alex holds a B.S. in Industrial Design from the University of Cincinnati. Before law school, he did product design work for various companies. He speaks enough French and German to be useful in continental European travel. Newly-appointed Prime Minister Liz Truss is currently dominating the headlines inside the United Kingdom. But for those not following domestic UK developments, the best-known piece of British news has not to do with the Liz now living at 10 Downing Street, but rather with the Liz who used to live in Buckingham Palace— Queen Elizabeth II. For some, this fascination with the monarchy may seem unnecessary—after all,many republics were built on throwing off precisely that monarchy. However, the member states of the Commonwealth of Nations have a vested political interest in the transition. Not only is the monarch traditionally head of the Commonwealth, but the monarch is also officially the head of state for a subgroup of 15 member states known as the “Commonwealth Realms.” In life, it was rare that Elizabeth II would ever actually exercise power to interfere with governance of the Realms. However, her death has renewed the conversation regarding the continued place of the monarch as the head of state. While Elizabeth II's death will likely accelerate some states republicanizing, particularly in the Caribbean, other Commonwealth Realms will continue to hold on to the monarch as head of state and the larger network of the Commonwealth will continue to hold sway, even as it confronts its colonial past. Where the Sun Never Set References to the Sun never setting on the British Empire go back at least as early as 1773. For much of the 19th century, the United Kingdom was the world’s dominant economic power as it exercised its financial and military prowess around the world. But pressures for autonomy and independence in the lands it colonized continued to grow, driven by such factors as a lack of political rights, growing nationalist sentiment, and the exploitation of native peoples. Indeed, one common rejoinder was that it was “[n]o wonder that the sun never set on the British Empire, because even God couldn't trust the English in the dark.” In the 20th century, the network of states connected by British colonialism gradually transitioned from forced empire to the modern Commonwealth of Nations, a political association of independent states. Some countries opted out of the Commonwealth, some remained but removed the monarch as head of state, and some have kept the monarch as head of state to the present day. While Elizabeth II was generally popular, King Charles III is not nearly so popular, raising questions about the continued role of the monarch as head of state. Growing Caribbean Sentiment In 2021, Barbados implemented a historic change in its constitution as it removed the monarch as head of state and replaced the position with an elected president, thus officially becoming a republic. Of course, Elizabeth II was still queen at the time, so it was not the identity of the monarch that catalyzed the change—rather it was the combination of growing republican sentiment and a decades-long debate. However, Elizabeth II's death may give a fresh boost to republican efforts in other nations. During her reign, the prime minister of Antigua and Barbuda, Gaston Browne, expressed support for removing the monarch as head of state and that the country should “one day become a republic.” Yet, he also noted that such a move was “not on the cards” at the time. However, shortly after signing a document confirming Charles’s status as king, Browne announced that he would push for a referendum within three years on whether to become a republic. As part of the effort, Browne noted that “[t]his is not an act of hostility or any difference between Antigua and Barbuda and the monarchy, but it is the final step to complete that circle of independence, to ensure that we are truly a sovereign nation.” Furthermore, as was the case with Barbados, Browne noted that even a republican Antigua and Barbuda would remain part of the Commonwealth. In addition to Antigua and Barbuda, at least five other Caribbean countries—Belize, the Bahamas, Jamaica, Grenada, and St. Kitts and Nevis—had expressed a desire to remove the monarch as head of state prior to Elizabeth II’s death. Jamaica had already announced plans to hold a referendum on the issue in 2025, and Belize has a constitutional reform commission poised to study the issue. Canada Unlike its rambunctious neighbor on its southern border, Canada’s independence process was comparatively slow and peaceful—notwithstanding such events as the Rebellions of 1837-38. In fact, relations with the monarchy were friendly enough that Canada’s first prime minister, Sir John A. Macdonald, preferred that the country be called the “Kingdom of Canada.” Adam Dodek, The Canadian Constitution 37 (Jenny McWha ed., 2nd ed. 2016) (noting that the British Colonial Office denied Macdonald’s choice of name out of concern over angering the United States). Like other Commonwealth Realms, the monarch is represented by a governor general who has immense authority on paper but rarely uses that power. Regarding bills, no Canadian governor general has withheld assent or reserved a bill since 1878. Dodek at 61. Additionally, exercise of other significant powers in opposition to the prime minister—such as in the notorious 1926 King-Byng affair—would likely create a constitutional crisis. Practically, the area where the governor general is most likely to make headlines—aside from scandals—is when the governor general exercises powers in accordance with the prime minister’s wishes but in a way that angers opposition parties. Modern examples of this include the 2008 prorogation dispute and the 2021 early election call. Perhaps the lack of a practical role for the monarch or governor general in determining Canadian governance is the reason Elizabeth II’s death and Charles III’s accession have had little impact on the Canadian public. A poll taken in September 2022 found that 75% of Canadians felt little or no impact from the Queen’s death, and 61% were indifferent to the accession of Charles III. Some polling does exist to give anti-monarchists hope. While 82% of Canadians felt that Elizabeth II did a good job, only 56% are confident that Charles III will do the same. And polling prior to Elizabeth II’s death also indicates that support for the monarchy is a minority position. However, the same polls also found large numbers of undecided respondents and a lack of consensus on a preferred alternative—results that one commentator likened to a “collective shrug.” Unlike other countries that may be able to easily act after a referendum against the monarchy, Canada’s constitution makes ending ties to the monarchy highly difficult. Canadian constitutional law experts note that such a constitutional amendment would require both the consent of parliament and the unanimous consent of all ten provinces. Given differences in provincial politics and the track record of previous referenda, experts doubt such an amendment would be possible without broad popular support and a will to push for the change. Given the above opinion polls, neither of these exist in Canada at the moment. As a result, the monarch will likely remain Canada’s head of state for some time yet. Whether Charles III will get his face on the currency is another matter, however. Australia Australia is no stranger to republican politics, having held a 1999 referendum on replacing the monarchy where the “no” vote prevailed 54.9% to 45.1%. The 2022 election of a Labor government under Prime Minister Anthony Albanese has given some renewed hope to Australian republicans, but they may have to wait for their desired change. Albanese does have a referendum on the agenda, but it is about recognizing Australia’s Indigenous people in the constitution—an election promise to be done within his first three years. Thus, even if Albanese wanted to accelerate a republican referendum—currently ruled out for his present term—the Indigenous representation referendum looks likely to require his current political capital and push the republican referendum several years into the future. New Zealand Recent polling in New Zealand indicates support for the monarchy even after Elizabeth II’s death. Perhaps reading public sentiment, Prime Minister Jacinda Ardern has not pushed for a referendum on the issue, instead only saying that the country would likely become a republic within her lifetime. Of course, Ardern is also known for being one of the youngest prime ministers in New Zealand’s history, so her statement leaves room for New Zealand to keep the monarchy for decades to come. Conclusion The death of Elizabeth II has brought the nature of the Commonwealth and its Realms further into question. Although the Realms are independent in the practical sense of running their own affairs, they retain a geographically distant monarch as their official head of state. For some, the process of ending this arrangement began before Elizabeth II’s death, but the passing of the Crown has already led to new discussions of accelerated timelines and brought the issue to the forefront. Still, one should not underestimate the popularity of the monarchy and difficulty of change in some Realms. While expressing openness to republicanization, politicians also recognize that popular support, constitutional amendment realities, and more pressing issues stand in the way of swift action to reform. There is little indication that removing the monarch as head of state threatens the continued existence of the Commonwealth. Most member states do not have the monarch as head of state, and even those considering becoming republics have not indicated a desire to leave the organization. More likely, these recent developments signal the next steps in the organization’s evolution – a future where the Commonwealth has more republics and fewer Realms. The Commonwealth has evolved in the face of political reality before, and it looks poised to do so again.