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About the authors: Ahan Gadkari serves as a Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission. He has previously served as an intern at the Centre for Trade and Investment Law, Government of India. Tushar Rajput serves as an intern at the Centre for Trade and Investment Law, Government of India. "Russian Bear 'H' Aircraft" by Defence Images, available here. On February 24, the Russian Federation initiated a “special military operation” in Ukraine. This was a transparent violation of the prohibition on the use of force codified by Article 2(4) of the United Nations (UN) Charter. Further, it was also inconsistent with Clause 1 and 2 of the Budapest Memorandum on Security Assurances. Vladimir Putin ordered the operation shortly after delivering a fiery speech outlining his intentions to invade Ukraine, and offering a justification for the use of force. (English Translation: here). First, Putin argued, his use of force is an intervention via invitation (IVI) for collective self-defense under Article 51 of the UN Charter within the so-called “Donetsk People’s Republic” and the “Luhansk People’s Republic.” Second, it is to end a genocide he claimed Ukraine has been perpetrating against ethnic Russians. This second justification seems to be invoking the responsibility to protect (R2P), a principle that Russia has historically denied. The purpose of this piece is to provide legal analysis of the assertions made by the Russian President and to explain why they are inconsistent with international law. Every rule in international law is subject to exceptions. The exceptions to Article 2(4) of the UN Charter and the controversial R2P doctrine have specific criteria that must be fulfilled before they can be invoked. Intervention Via Invitation: IVI and collective self-defense are sometimes seen as two independent exceptions to the prohibition of the use of force, and hence as two distinct reasons for governments to legitimately employ force. However, the two doctrines are substantially similar, since both deal with situations in which a state invites/requests the aid of another state’s military. The rationale of the concept is that the prohibition on the use of force only covers the use of force without consent. The International Court of Justice (ICJ) codified IVI as a concept within international law in the Nicaragua case. However, the ICJ also stated that the concept of non-intervention would lose its legal efficacy if the intervention were justified only based on a request for help made by an opposition organization in another State. Indeed, it is difficult to see how the principle of non-intervention would survive in international law if intervention were permitted at the opposition’s request. This would allow any state to interfere at any time in another State’s internal affairs, whether at the request of the administration or the opposition. The ICJ further stated that such an interpretation is not consistent with the present position of international law (para. 246). Applying this principle here, the legalizing effect of consent by “Donetsk People’s Republic” and the “Luhansk People’s Republic” must be questioned. Especially since the situation is such that the consenting government is not legitimate and not recognised by any State other than Russia. Therefore, the Russian defense of IVI is baseless. Defense of Responsibility to Protect: It is essential to reiterate that Russia has historically denied the use of R2P as a valid exception to the prohibition on the use of force. Further, in his speech, the Russian President criticized the use of force by the North Atlantic Treaty Organization (NATO) in various instances. The Russian President stated: “Then came the turn of Iraq, Libya, Syria. The illegitimate use of military force against Libya, the perversion of all decisions of the UN Security Council on the Libyan issue led to the complete destruction of the state, to the emergence of a huge hotbed of international terrorism, to the fact that the country plunged into a humanitarian catastrophe that has not stopped for many years. civil war. The tragedy, which doomed hundreds of thousands, millions of people not only in Libya, but throughout this region, gave rise to a massive migration exodus from North Africa and the Middle East to Europe. A similar fate was prepared for Syria. The fighting of the Western coalition on the territory of this country without the consent of the Syrian government and the sanction of the UN Security Council is nothing but aggression, intervention. However, a special place in this series is occupied, of course, by the invasion of Iraq, also without any legal grounds. As a pretext, they chose reliable information allegedly available to the United States about the presence of weapons of mass destruction in Iraq. As proof of this, publicly, in front of the eyes of the whole world, the US Secretary of State shook some kind of test tube with white powder, assuring everyone that this is the chemical weapon being developed in Iraq. And then it turned out that all this was a hoax, a bluff: there are no chemical weapons in Iraq. Unbelievable, surprising, but the fact remains. There were lies at the highest state level and from the high rostrum of the UN. And as a result: huge casualties, destruction, an incredible surge of terrorism.” The Russian President is criticizing the NATO countries for using R2P as a part of his justification for its use by Russia in this instance. This argument seems extremely hypocritical and lacks consistency. Turning to the so-called “genocide” against the people of Donetsk and Luhansk by Ukraine and granting statehood. In declaring a genocide, Russia has lowered the standard of agreession required for remedial secession. This contrasts with Russia’s assertion that Kosovo did not meet the threshold for ceding from Serbia even after the International Criminal Tribunal for the former Yugoslavia (ICTY) documented the mass atrocities faced by the Kosovar Albanians. The crime of genocide has an important nexus requirement. The abilities of domestic courts and the responsibility of states are subject to legal action taken; however, even before dwelling into these concrete steps, implications in international relations are to be addressed. President Putin has asserted that there is a ‘genocide’ being conducted by Ukraine, and circulated a document to the UN Security Council accusing Ukraine of exterminating the civilian population. Russia’s actions raise questions as to whether a moral right of humanitarian intervention is converted into a right under international law in the event of attempted genocide. Further, it is important to consider the objective standards that determine the threshold of damage before intervention is acceptable. The invocation of genocide represents more than just a shallow casus belli. Genocide entails an aggravated regime of state responsibility. It is a composite crime and consists of acts which are themselves punishable by most existing legislations. The Convention on Preventing and Punishment of the Crime of Genocide (convention) defines acts amounting to genocide and enumerates material offences with necessary mental elements. Extermination, as described in Prosecutor v. Radislav Krstic in the ICTY (para. 492-505), is understood as actions that are subordinated with an intent to destroy or cripple a human group permanently (also see statements made by Sir Hartley Shawcross and Sir David Maxwell Fyfe here.) The convention differentiates between ‘attempt’ and ‘partial act,’ as has previously been upheld by the International Criminal Tribunal for Rwanda in Prosecutor v. Laurent Semanza (para. 316). In the crime of attempted genocide, an entity does not realise its intent, whereas, in a crime of genocide, the acts are attributed to a state to establish the intent. Russia furthers its intervention on the lines of the attempt of genocide, thus shall never meet the standards of intent required to act against Ukraine. Further, the International Law Commission has also held that such an irrational understanding of international standards is inconsistent with international law (page 44). Genocide requires neither many victims nor their deaths, rather a systemic deprivation of identity and acts of inhumanity. Since the Russian annexation of Crimea and subsequent conflicts, this burden of proof against Ukraine has not been met. Such proliferation of the convention and existing principles of international law indicates genocide’s politicisation. The claimed atrocities against the people of Donetsk and Luhansk by Ukraine, even if we assume the Russian President’s assertions to be accurate, the acts would qualify as crimes against humanity, the separate codifications – one in international treaty and other in international custom, does not call for the same response from a State and it will still not be construed to be a genocide. Concluding Remarks Thus, the justifications provided by the Russian President regarding IVI and R2P do not meet the criteria necessary to be valid exceptions to the prohibition on the use of force. The actions by Russia appear to be founded in the warped Russian assertion of the world being dominated by a hostile west, leaving them to be the sole protectors of the people of Russia and Ukraine. Russia never accepted the right of Kosovo for self-determination or remedial cessation on the basis of genocide. However, Russia wants to use the same argument when it favors its policy. Russia’s invasion of Ukraine is neither justified under IVI or R2P nor does it meet their own interpretation of international law in the past.

Xiangyu Ma (LL.M. ’22) is a Contributor to Travaux. Prior to joining Berkeley Law, he obtained his LL.B. degree from Wuhan University in China. Previously, he had interned with public and private stakeholders across different legal sectors such as PE, bankruptcy, dispute resolution, and infrastructure construction. He is particularly interested in the topics of public law, international law, and comparative law. The Hong Kong Court of Final Appeal, available here. On March 30, 2022, Lord Reed, President of the United Kingdom Supreme Court, said that two British non-permanent judges of the Hong Kong Court of Final Appeal (CFA), the highest court in Hong Kong, would resign from their posts on the grounds that the Hong Kong administration had "departed from the values of political freedom, and freedom of expression.” Since the promulgation of the Hong Kong National Security Law, four foreign judges have left Hong Kong’s highest court. Chief Justice Andrew Cheung Kui-Nung regretted the resignations of two non-permanent foreign judges and stated that the judiciary’s commitment to upholding the rule of law and judicial independence is wholly unaffected. In the meantime, nine out of 10 remaining non-permanent foreign judges of the CFA confirmed they would stay. Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, explained her reason for staying on: “the court is…perhaps the last surviving, strong institution of democracy.” Hong Kong has a long tradition of recruiting foreign judges since its 1997 handover. Article 92 of the Hong Kong Basic Law stipulates that “[j]udges…may be recruited from other jurisdictions.” Article 82 also reads that inviting judges from “other common law jurisdictions to sit on the Court of Final Appeal” is permissible. However, the employment of foreign judges in domestic courts, or even the mere citation of foreign law or international treaties in judgments, appears controversial – in the United States, Supreme Court Justice Antonin Scalia, in Roper v. Simmons, held in his dissenting opinion that he “do[es] not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles” and “the only legitimate function of this Court is to identify a moral consensus of the American people.” Despite the skepticism, having foreign faces sitting on the bench is a global phenomenon that we can see in Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu, and many other jurisdictions. This article will examine the pros and cons of this phenomenon and explain why foreign judges are leaving Hong Kong. Legitimizing and De-Legitimizing Foreign Judges in Domestic Courts Most countries in the world expressly require judges to be citizens. However, more than 30 countries have foreign judges serving on their highest or constitutional courts. The reason for rejecting foreign judges is simple—different countries have their own laws, and foreign judges often lack the local legal knowledge to serve in a different state. Further, the court, as a branch of the government, needs to maintain a certain level of political sensitivity to avoid undermining its own legitimacy, especially in adjudicating interbranch disputes – for example, the US Supreme Court developed the Political Question Doctrine in Baker v. Carr to set the boundaries of its own adjudication. However, the role of the judiciary in the political sphere varies from country to country. In Germany, because of a history of Nazis gaining power through democratic procedures, the German Federal Constitutional Court is vested with broader power of judicial review than the US Supreme Court to draw constitutional boundaries on the operation of public powers. For example, it can declare a statute unconstitutional even without a case before the court. That said, foreign judges may not fully understand the local political context when delivering judgments on those highly political or interbranch cases. Additionally, foreign judges’ appearance in domestic courts may stir up strong nationalist sentiments. For instance, Republika Srpska, the Serb-majority substate of Bosnia and Herzegovina (BiH), claimed in 2020 that it would suspend its participation in BiH state institutions until foreign judges are expelled from BiH’s Constitutional Court. This followed a decision by the Court determining that Republika Srpska’s public land law was unconstitutional. Nonetheless, there are also many justifications for having foreign judges in domestic courts. First, judges from jurisdictions with a high degree of the rule of law can boost the international prestige of newly established courts, thereby attracting much-needed foreign investment into the country. Hong Kong fits such a scenario: in 1983, Hong Kong experienced a stock disaster when China and the UK reached a deadlock in negotiating the transfer of sovereignty over the island. One of the reasons for the market panic was that the Judicial Committee of the Privy Council’s status as the highest appellate court in Hong Kong would be replaced by the Chinese judiciary or legislature after the Handover. Therefore, the Chinese government made concessions and agreed to vest the power of final judgment in Hong Kong’s courts and invite judges from other common law jurisdictions to participate in the court hearings. These legal commitments by the Chinese government then became parts of the Sino-British Joint Declaration and were finally written into the Hong Kong Basic Law. Second, in some post-conflict countries, foreign judges are often seen as impartial outsiders who maintain distance from local political groups. As a result, they can empower courts in post-conflict nation-building processes by adjudicating cases as a neutral, apolitical third party. In BiH, a country with serious ethnonational divisions in the past, domestic judges are often suspected of being significantly influenced by their ethnonational affiliations in judicial decision-making. Foreign judges face less appearance of bias. Third, some post-colonial and post-authoritarian countries lack qualified local professionals in the judiciary either because of their colonizers’ negligence of judicial localization or authoritarian regimes’ natural tendency to undermine the importance of the legal profession. For example, Hong Kong did not start its own legal education until the establishment of the Faculty of Law of the University of Hong Kong in 1969. Most of the legal professionals before the Handover were trained overseas, which could not be afforded by many local people. This is also the case in many small Caribbean and Pacific states. As a result, foreign judges are needed in these countries during their transitional periods. Hong Kong’s Foreign Judges in Changing Times Foreign judges have played an important role in the continued prosperity of Hong Kong after 1997. Since the Handover, Hong Kong has maintained a high-level rule of law jurisdiction worldwide, and Hong Kong judgments are cited from time to time overseas. However, the role of foreign judges in Hong Kong has become increasingly controversial as several factors have changed over the years. First, Hong Kong is not as economically important to mainland China as it was at the time of the Handover. In 1997, China was experiencing rapid economic growth after the implementation of its “Reform and Opening-up” policies and sought membership in the World Trade Organization. Hong Kong, an international financial center, was crucial to China’s market reforms. This is the key reason for China’s “one country, two systems” policy, of which expatriate judges are a part. As China became the world’s second-largest economy, its support for this economically rational arrangement waned. Additionally, the economic integration of mainland China and Hong Kong incentivizes Beijing to gradually assimilate the legal system of Hong Kong, especially with other regions of the Great Bay Area, a mega-region that comprises the cities of Guangdong province, Hong Kong, and Macau. Second, and more importantly, the legitimacy of the Hong Kong judiciary has declined in Beijing’s eyes in recent years. In democracies, the judiciary has always faced a democratic legitimacy dilemma because of counter-majoritarian difficulty. However, in Hong Kong, public trust towards the impartiality of the judiciary is often higher than public support of the Chief Executive and the Legislative Councillors. The real legitimacy problem the Hong Kong judiciary has to deal with is its legitimacy in the perception of the Chinese government, given the latter has “predominant political power” over Hong Kong. Some high-profile Chinese scholars have increasingly described the phenomenon of foreign judges in Hong Kong as the “loss of Chinese judicial sovereignty” and argue that the Hong Kong judiciary must be decolonized. Additionally, during the 2014 Umbrella Movement and the 2019 Anti-Extradition Bill Protests, some foreign judges sitting in Hong Kong’s lower courts were tagged by Chinese state media as people “who released the protestors caught by the police.” Therefore, in 2021, Beijing started to reiterate that the principle of “Patriots Governing Hong Kong” is fundamental to “One Country, Two Systems” and applies to judges at all levels. This will make the situation of foreign judges in Hong Kong even more delicate as their home countries are not China. Third, the enactment of the Hong Kong National Security Law also places foreign judges in an ethical dilemma. Macau, the other “Special Administrative Region” of China, amended its Law of Judicial Organization in February 2019. Pursuant to Article 19-A of this law, judges hearing cases involving national security crimes must be selected from a pool of candidates who are Chinese citizens. On the contrary, the Hong Kong National Security Law does not impose nationality restrictions on judges who hear such cases. As a result, foreign judges in Hong Kong may be selected to sit on national security cases and subsequently face ethical dilemmas because adjudicating these cases may be perceived as legitimizing the diminishing of freedoms in this city. Conclusion The imposition of the Hong Kong National Security Law has already caused a brain drain in Hong Kong, and the newest COVID outbreak has exacerbated the situation—as of March 18, more than one million people out of the city’s seven million citizens have tested positive. Strict quarantine measures have led nearly 50% of European companies planning to relocate staff. Hong Kong’s status as Asia’s financial center may be experiencing its most precarious moment since the Handover. Hong Kong’s past success was built on the rule of law, in which foreign judges played an irreplaceable role. If Hong Kong wants to continue to prosper as a vibrant city, more efforts should be made to ensure foreign judges stay on their posts during these challenging times, rather than letting nationalists cheer their departure.

About the author: Angela Chen (J.D. Candidate, Class of 2024) is a Contributor to Travaux. Her interests center on critical, deconstructive, and decolonial approaches to international law and international relations theories. Angela holds B.A. degrees in Political Science and Philosophy from the University of Chicago, and an M.Sc. degree in International Relations from the London School of Economics and Political Science (LSE). She is a native speaker of Mandarin and proficient in French. Photo available here. Introduction One of the most notable initiatives of Chinese President Xi Jinping’s tenure is the “Belt and Road” Initiative (BRI), comprised of the “Silk Road Economic Belt” as well as the “21st Century Maritime Silk Road,” connecting China to countries in Southeast Asia, South Asia, Central Asia, the Middle East and North Africa, and, ultimately, Eastern and Western Europe. Although it has yet to take the shape of a comprehensive blueprint, BRI has instigated suspicion and anxiety in the West regarding the intention of the Chinese leadership in proposing such an ambitious infrastructural framework: is China seeking to overturn the existing liberal international order by constructing a viable alternative? Or does China merely wish to expand its strategic space and sphere of influence while adhering to the existing international realities? While it is difficult to gauge the actual intentions of great powers, this article attempts to take a small step at elucidating these problems by examining the key objectives of BRI. Particularly, this article focuses on the discursive and ideational dimensions of BRI, which would throw light on the opportunities and challenges posed by BRI to international law and institutions. The world’s first encounter with BRI took place months after Xi came into office, articulated in his speech during a visit to Kazakhstan in September 2013. Proclaiming that countries with different cultures and histories could all partake in one common scheme of “peace and development,” Xi asserted that the ancient Silk Road had taken on “new vitality” with the development of China’s relations with Asian and European countries, as China sought to work with Eurasian states to advance the “happiness and well-being” of all people in their shared region. The concept of BRI, or its previous moniker of “One Belt, One Road” (OBOR), recurred during Xi’s visit to Indonesia in October 2013 and Premier Li Keqiang’s state visits in Asia and Europe in 2014. Nostalgic connections were drawn between the ancient Silk Road and BRI, harkening back to the Tang Dynasty, when China was the Middle Kingdom: the center of the ancient East Asian tributary system and the world at large. If ultimately successful, BRI will connect over 60 countries along the ancient Silk Road from the Asia-Pacific to Europe through infrastructure projects, economic linkages, and people-to-people interactions. In “Vision and Actions on Jointly Building Silk Road Economic Belt and 21st Century Maritime Silk Road” (“Vision and Actions”), Chinese leadership laid out the basic priorities of BRI: policy coordination, facilities connectivity, unimpeded trade, financial integration, and a people-to-people bond. Taken together, these five priorities aim to foster connectivity between China and the rest of Eurasia through constructing a large, unified market. The Geoeconomics and Geopolitics of BRI In recent years, China has encountered economic bottlenecks that have given rise to the “new normal,” an era of slower economic growth. Structural transformations in China’s economic model became necessary: from an export-led economy to one more driven by domestic consumption. The exigency of a new economic model translates into the need to access resources and markets. In addition to securing access to vital supplies, BRI attracts trade and business opportunities for Chinese state-owned enterprises (SOEs), thereby solving the overcapacity problem of the Chinese economy. As such, BRI seeks to tap market potential, promote investment and consumption, and stimulate job creation. Countries involved in BRI could absorb China’s excess industrial capacity, materials, and labor. They would also diversify China’s financial surplus, help increase capitalization, and control domestic investment. China would also be able to revitalize exports as a growth engine for its economy, which would ease the process of structural economic change. BRI projects enable Chinese firms to seek investment projects abroad, which would allow Chinese firms to become more competitive internationally. BRI projects would also permit Chinese leadership to test the ability of SOEs to meet its call for developing themselves to become internationally competitive, and could give large SOEs access to capital from state banks. The use of the Chinese currency, the Renminbi, would also be developed in international markets, which could lay the ground for its potential future elevation to a reserve currency. Geopolitically, BRI is seen as a pushback against the United States’s presence in the Asia-Pacific. BRI is to some extent a reaction against then-President Barack Obama’s 2012 “Pivot to Asia” strategy, which called for the deepening of American presence in East Asia. BRI also builds upon and has expanded existing inter-state cooperation in both economic and security realms under the Shanghai Cooperation Organization (SCO) and among BRICS (a coalition of five rapidly emerging economic powerhouses: Brazil, Russia, India, China, and South Africa) members, which would have countered the US-led Trans-Pacific Partnership (TPP) before it was scuttled by then-President Donald Trump in 2017. The Asian Infrastructure Investment Bank (AIIB), as well as BRICS’s New Development Bank (NBD) fund BRI projects and mark a turn away from Western-dominated financial institutions such as the International Monetary Fund (IMF). As such, BRI signals a milestone in China’s multilateralization strategy, and might to some extent foreshadow the construction of parallel institutions vis-à-vis the US-led liberal international order. Telling the China Story: BRI as Narrative As Xi asserts, BRI strengthens the “people-to-people” bond among partner countries, culminating in a “community of common destiny” and a “shared future of mankind.” Despite their lofty-sounding tone, such phrasings indicate that BRI attempts to reshape international political discourse, enabling China to frame itself in a positive light to a global audience. Indeed, BRI seeks to mitigate the anxiety of China’s neighbors regarding China’s rise through presenting a desirable image of a “win-win” for all countries that cultivate extensive business ties with Beijing The largely transactional nature of BRI’s economic focus is then layered with an almost teleological connotation, illustrated by wordings such as “common destiny.” The framework of relationalism would inform the ways in which BRI attempts to transform the power configurations of international relations. Relationalism posits transactional interactions between states as the foundation of their interactions. As such, the shape that interstate relations take is the result of processes. Dominant states gain influence through the establishment and maintenance of dense ties, which could induce interest alignment in smaller secondary states, enabling the dominant state to exert influence over secondary states’ domestic and foreign policies. Through this lens, BRI serves as an “influence multiplier” for China, which could reconstitute regional states’ development priorities, interests, and relations in ways that benefit China’s strategic interests. In a similar vein, BRI’s policy emphasis on integration and coordination aims to facilitate policy alignment, boosting China’s influence over partner countries. The push for integration is especially salient with respect to threat perception, security cooperation, and joint training at bilateral and multilateral levels. The influence-multiplying effect of BRI might paint a picture in which partner countries are lacking in agency, and their actions are thus molded and shaped by Chinese initiatives. On the contrary, the two-way nature of agency means that China is also actively seeking to offer a coherent narrative to persuade and lure its partner countries. Indeed, as China’s assertive foreign policy posture has raised suspicion among its neighbors, China seeks to ameliorate its neighbors’ anxiety and prevent any acts of balancing on the part of its neighbors. Propounding that BRI is “China’s greatest gift to mankind,” Xi posits that the “Asian-style” integration that BRI attempts to facilitate is different from the “European-style” integration as exemplified by the European Union (EU). The former shows a greater extent of sensitivity to national sovereignty, which would be appealing to countries involved in BRI, many of which guard their hard-won sovereignty. The stress on commonality and a shared regional vision represents the “hunt for a common Chinese language.” Indeed, working with countries whose political systems and international visions are disparate from China’s own requires a convincing and inclusive story. Phrases like “win-win” constitute the elements of this story, while the telling of this story is also facilitated by “people-to-people bond,” as well as inter-cultural exchanges, which seek to promote mutual political trust and understanding. By espousing the construction of a “community of common destiny,” China implies that it has a unique role to play in the development of “political civilization” writ large. The way BRI is sold to participating countries attempts to give China a discursive advantage over other major powers, such as the US, by emphasizing common development over power politics. For instance, the “Silk Road Spirit” underpinning BRI is sold as symbolizing “peace and cooperation, openness and inclusiveness, mutual learning and mutual benefit,” which China hopes will draw a stark contrast with what it believes is an exclusive alliance system of the US and its allies. Although there has yet to be any evidence that BRI has indeed altered the geopolitical realities in Asia, its espousal of alternative political norms—such as “a new type of network diplomacy”—might signal its potential to shift the discourse of international relations. As such, delving into the ideational dimension of BRI might allow us to gauge the kind of normative great power China seeks to become, which would have significant implications on the state of international law and institutions. Conclusion Now one might ask, how has BRI been received in China’s partner countries? Its reception has been mixed, with anti-BRI sentiment on the rise in some countries. The lack of transparency of BRI projects, the unsustainability of partner countries’ debt loads, the influx of Chinese labor which has overcrowded local job markets in target countries, as well as the resultant corruption and environmental damage in target countries, have raised domestic and international concerns. Although the non-conditionality approach of BRI was its earliest selling point, the absence of democratic oversight and accountability has instigated doubt regarding its long-term sustainability and feasibility. Therefore, while examining the key priorities of BRI from the vantage point of the Chinese leadership could shed some light on China’s intentions and the implications for the international order, devoting more attention to the limitations and setbacks BRI has encountered in its partner countries may open up further insight into this matter.

About the Author: Nirmalya Chaudhuri is a law student at the West Bengal National University of Juridical Sciences, India. "Beans preapared" by Nestlé available here. On June 17, 2021, the United States (US) Supreme Court dismissed a suit against Nestle USA Inc. (Nestle) and Cargill Inc. (Cargill) alleging that these companies had aided and abetted child slavery in cocoa farms in Ivory Coast. Although the farms were operated by third parties, Nestle and Cargill pumped substantial technical and financial resources into the farms’ operations. The entire case revolved around the extraterritorial application of the much debated Alien Tort Statute (ATS), which gives US district courts jurisdiction over claims brought by foreigners for torts committed in violation of international law. The Court based its decision on the premise that invoking ATS in this case would amount to extraterritorial application of the law. This is because the companies concerned carried out only “general corporate activity” in the US, a standard that is insufficient to draw a link with the alleged activities in Ivory Coast. By focusing on whether applying the ATS was an extraterritorial application of the law, the Court avoided analyzing whether corporations can be held liable for their actions under international law. For decades, US Courts have consistently argued that corporations are immune to international law, supporting their argument by reference to the Nuremberg Trials. However, this argument flows from a myopic misreading and misinterpretation of history. At the end of the Second World War, the International Military Tribunal at Nuremberg faced the issue of whether to charge certain German corporations, like IG Farben, for supporting the Nazi war effort. Although the Tribunal declined to hear claims against IG Farben, it did not do so because it found that IG Farben had not violated international law. While US Courts have continued to invoke the Nuremberg Trials as support for corporate immunity, various jurisdictions in Europe have adopted legal regimes that impose extraterritorial liability on corporations. Efforts like France’s “veil piercing” legislation are a welcome change. THE GHOST OF FARBEN: DEBUNKING THE MYTH OF CORPORATE IMMUNITY IN INTERNATIONAL LAW In 2002, the Ninth Circuit Court of Appeals broke the mold, holding that natural gas company Unocal could be liable under the ATS for assisting the Myanmar military in subjecting villagers to forced labor. This progressive legal proposition could have served as a signal that corporate impunity was not allowed under international law. However, in the 2010 Kiobel v. Royal Dutch Petroleum Co. opinion, the Second Circuit held that corporate liability was not customary international law (CIL) because corporations have never been tried for violating international law in the history of international criminal tribunals. Eight years later, the US Supreme Court applied this same rationale in Jesner v. Arab Bank. While corporations themselves have never been prosecuted for criminal conduct, analyzing historical context shows that mere precedent should not absolve them from liability. The Nuremberg Tribunal prosecuted executives of IG Farben individually for supplying the deadly Zyklon B Gas to the Nazis and engaging in slave labor. But the tribunal declined to charge the corporation itself because the Allied Powers had seized the assets of IG Farben before the Nuremberg Trials had even begun. Therefore, the tribunal’s decision to prosecute the executives rather than the corporation resulted from the fruitlessness of prosecuting a defunct company rather than IG Farben’s immunity from wrongdoing. Several dissenting voices have raised this counterargument. In the 2014 case In re South African Apartheid Litigation, a District Court in New York opined that the mere fact that no international tribunal had ever proceeded against a corporation was insufficient proof that corporate liability was unknown in international law. The D.C. Circuit put forth perhaps the most compelling argument against corporate immunity in Doe v. Exxon Mobil Corporation. There, the Court highlighted the nuance in the historical context surrounding the Nuremberg tribunal’s decision not to put IG Farben on trial. EXTENDING THE LONG ARM OF THE LAW: THE ISSUE OF EXTRATERRITORIALITY US Courts have often cited the problem of extraterritoriality to justify a conservative approach in cases filed under the ATS. For instance, the primary ground for dismissing the Nestle case was the fact that all the alleged instances of slavery took place outside the borders of the US, and “general corporate activity” by US companies could not be the sole reason for holding them liable for misdeeds committed abroad. Although complex corporate structures, in which the parent corporation and its foreign subsidiaries are legally distinct entities, often create roadblocks in holding multinational corporations accountable, Courts can “pierce the corporate veil” to curb transnational crimes committed by corporations without compromising doctrinal clarity. In the United Kingdom (UK), for instance, Section 54 of the Modern Slavery Act, 2015, requires certain corporations to ensure that slavery and human trafficking are not taking place throughout their supply chains, which often involve overseas actors and suppliers. Such a standard could have been used as a potent accountability tool in Nestle because the alleged slavery was committed in the farms of Ivory Coast, which were part of the supply chains of Nestle and Cargill. In 2017, France enacted a landmark “law on due diligence” that imposes liability on parent corporations that fail to conduct due diligence in ensuring that their foreign subsidiaries and suppliers do not violate human rights. While this law has limited extraterritorial application, parent corporations often exert overwhelming influence upon their foreign subsidiaries’ business activities. In 2020, Syrian workers and two NGOs filed a criminal complaint under the law on due diligence to charge Lafarge, a French multinational corporation, for the financial assistance its Syrian subsidiary gave to the Islamic State. A more widespread application of veil piercing would go a long way in ensuring that a parent corporation cannot feign ignorance while its subsidiaries commit grave violations of law abroad. CONCLUSION The recent tendency of US courts to restrictively interpret the ATS and hinder its extraterritorial scope is gravely inimical to protecting human rights abroad. US courts’ reliance on the non-prosecution of IG Farben at Nuremberg, to justify corporate immunity flows from a misguided reading of historical facts. In this connection, any effort aimed at extending the scope of application of domestic laws to cover the acts of foreign subsidiaries is a welcome step. As the French experience and the recent Lafarge case shows, disregarding doctrinal concerns of extraterritoriality is a small price to pay for protecting human rights abroad. The theoretical uncertainty surrounding corporate liability under international law continues to persist, creating a dangerous incentive for corporations to sacrifice human rights at the altar of business expansion.

About the author: Ankit Kapoor is a fourth-year BA-LLB (Hons.) student at National Law School of India University, Bangalore. He is acutely interested in the intersection between technology and the law. Presently, he has worked with renowned litigators, law-firms, and policy-makers in India on data protection/governance as well as legal and policy challenges from the internet, blockchain, and artificial intelligence. Photo by Marco Verch available here. Introduction There are at least 2,247 different cryptocurrencies worldwide, with a total market capitalization of $171 billion and valuation around $2 trillion. While this constitutes a fraction of the aggregate financial market, trends indicate that crypto-transactions will rise exponentially in the next decade. However, it is well-recognized that the unique characteristics of cryptocurrencies facilitate tax evasion, with over $1.4 billion illicitly funneled. The increasing global crackdown on offshore tax havens also renders crypto-transactions more lucrative. Blockchain is an open and distributed ledger that records transactions amongst parties permanently, verifiably, and efficiently. The architecture of blockchain imbues it with key characteristics: decentralization, pseudonymity, immutability, and transparency. Cryptocurrencies are a type of virtual currency that operates on blockchains. Therefore, they use blockchain protocols and demonstrate its characteristics. The European Commission has defined cryptocurrency as a digital representation of value that is neither issued by a public authority nor attached to a fiat currency, but is accepted by persons as an electronic medium of exchange, store of value, and/or unit of account. Outlining Tax Evasion Concerns from Crypto-Transactions There are two kinds of tax evasion: evasion of assessment and evasion of payment. The most common is evasion of assessment, where the evader wilfully attempts to omit the levy of taxes on income either by underreporting their income or overstating their deductions. The other is evasion of payment, where the evader escapes tax liability by concealing funds or assets. Both forms of tax evasion create economic distortions because the resources invested in evading liability create no social benefit. I. Features enabling evasion Crypto-transactions facilitate tax evasion because they are anonymous and decentralized.Additionally, structural problems like global non-uniformity and inadequate disclosure and reporting make regulation and enforcement difficult. Anonymity prevents government authorities from tracing the identity of the evader. This restricts transactions from being monitored and sanctioned by tax authorities, enabling evaders to operate outside of the regulatory perimeter. As explained earlier, the anonymity of crypto-transactions can range from pseudonymity to complete anonymity. While the former allows for some traceability, it is far too expensive, complex, and inaccurate to yield consistent results. Decentralization means the absence of a centralized authority. This hinders regulatory efforts because there are no issuers or payment processors to use as focal points of regulatory action. Moreover, there are little to no intermediaries, which reduces vulnerabilities for the evader. Cross-border transactions further enhance decentralization because countries lack a uniform approach to recognizing and classifying crypto-transactions for tax purposes. Therefore, cross-border transactions facilitate evasion. Moreover, some countries have lax rules and enforcement, which frustrates domestic information gathering and enforcement. There is also inadequate disclosure and reporting because anonymity reduces the type of information crypto-intermediaries may themselves have. Further, there are no mandatory disclosure and reporting requirements for reporting income from crypto-transactions. Since tax evasion investigations depend on “following the paper trail,” this lack of information handicaps tax authorities. II. Mechanisms Enabling Evasion Peer-to-Peer Transfers Peer-to-peer transfers are crypto-transactions undertaken between two users through their wallets, outside exchanges, and platforms. Strategically, this is the best option for evaders because it does not involve any intermediaries, creating almost no traceability. Conversion into Fiat Currency All convertible non-centralized virtual currencies are tradeable or purchasable with fiat currency, represented by traditional options like cash. This is facilitated through confidential transactions with online vendors, or through cryptocurrency ATMs. Using Third-Party Agents Under these confidential schemes, an investor subscribes to the stock of a company by paying the buying agent through cryptocurrency. Thereafter, the agent remits any dividends on stock of the company to the investor. Fork and Merge Crypto investors use the “fork and merge” pattern to hide the source and destination of funds. This involves either splitting large volumes of the cryptocurrency into multiple small accounts owned by the same investor or purchasing the cryptocurrency in smaller lots using multiple wallets. Anonymizers Anonymizers involve the use of third-party tools like “mixers” or “tumblers.” Mixers obfuscate the source of certain units of cryptocurrency by mixing the cryptocurrency of multiple investors before the concerned units are delivered to their desired destination. Tumblers sever the link between the buyer and seller entirely. Privacy Coins While typical cryptocurrencies only provide pseudonymity, “privacy coins” like Monero and Verge are effectively invisible because they leave no trace. Proposing a Multi-Stage and Multi-Levered Toolkit The anonymity, decentralization, non-uniformity, and inadequate information concerns must be addressed at all three stages of the tax regulation process: information gathering, investigation, and enforcement. Given the complexity of the discussed evasion mechanisms, regulators must use architectural and market tools in addition to legal tools. So far, most regulators have restricted their action to merely legal tools. Architectural tools are the instructions embedded in software and hardware, as well as the institutional design of the blockchain. Market tools are the forces of demand, supply, and quality, as well as the acceptable market practices and institutions. I. Information Gathering Disclosure and Reporting Requirements As a legal solution, regulators must mandate disclosure and reporting of crypto-transactions when they exceed a predetermined de minimis threshold. The threshold should be determined based on each jurisdiction’s unique circumstances, but the US’ $10,000 threshold is a good starting point. The requirement must extend to all crypto-exchanges, payment settlement entities, and custodian wallet providers. As per reports, such third-party disclosures can improve taxpayer compliance rates by 95%. The Financial Action Task Force proposed the travel rule, which requires all crypto firms to securely transmit originator and beneficiary information between themselves while transacting. Regulators must mandate this domestically. Importantly, there is a need for architectural intervention because, unlike SWIFT, there is no communication network to reliably transfer identification data along with crypto-transactions. There are emerging market solutions to this, such as the OpenVASP Association or the Sygna Bridge. However, it is imperative that countries reach global consensus on one of these networks to avoid fragmentation and ensure interoperability. At the investor level, regulators can design voluntary self-disclosure forms for person-to-person transactions. However, the complexity of the present system has enabled the emergence of market players, like Koinly or CoinTracker, that charge exorbitantly. Regulators can decrease the leverage of these players by simplifying the compliance process or by imposing ceilings on their fees. By providing appropriate incentives and adequate safeguards, regulators can establish effective whistleblower programs. This will provide exposure to reports from those inside the business, who are best placed to expose any wrongdoing. Through these interventions, regulators can establish an effective feedback loop within each market participant. John Doe Summons While disclosure and reporting requirements are useful, they are limited when the entities are recalcitrant or when their adoption is delayed due to structural issues. Here, regulators can enact provisions allowing “John Doe summons.” In the US, tax authorities use them as legal tools to obtain information (names and documents) about unnamed taxpayers from a third-party. This information can then be combined with data from publicly available databases to examine compliance. International Cooperation Global consensus on crypto-asset taxation is vital. While jurisdictions may adopt different classifications, they can at least functionally and reciprocally enforce each other’s regulations. More importantly, there is a need for timely and comprehensive exchange of information across borders, which would enable regulators to perform risk analysis. The ineffectiveness of bilateral taxation treaties, due to complexity, time, and opportunity cost, necessitates the adoption of multilateral treaties to ensure an extensive network of tax information. Given concerns of ceding sovereignty, this solution can be administered through an international body like OECD. Traceability Requirements Traceability of taxpayer information is required for both individuals and entities. To collect information about individual investors, regulators must legally mandate that all crypto-exchanges adopt Know Your Customer (KYC) procedures. KYC is the initial stage in customer due diligence by the service-provider to verify that customers are who they claim to be. This requires the collection of personal data like full name, date of birth, and address. This information is then verified against official government databases. KYC enables the service provider to also assign a risk value to the customer based on their propensity and background. Presently, KYC implementation is abysmal with 69% crypto-exchanges lacking adoption. There is also a need to recognize that the architecture of certain technologies precludes or obfuscates any traceability. Regulators must consider banning privacy coins since they provide an excessive degree of anonymity. Otherwise, mandatory registration past a materiality threshold must be imposed. Additionally, regulators must forbid crypto-platforms from allowing the usage of anonymizers and even proactively block access to such software on the internet. II. Investigation Analysis Data Analytics Regulators should engage in architectural solutions like tracking crypto-transactions, scraping data, and using analytics to derive insights. The insights gathered from each of these tools when combined will provide regulators with a 360-degree view of the taxpayer. Inducting Experts The data collected and insight deduced are only as good as the people interpreting them. Therefore, tax authorities must consciously expand their membership to subject matter experts in data science, cryptocurrency, and behavioral science. Red Flags Regulators can use indicators of suspicious market activity to focus their efforts for further monitoring and examination. These red flags extend to inter alia the size and frequency of transaction, suspicious transaction patterns, excessive usage of anonymity, and the source of wealth. III. Enforcement Borrowing from South Korea, countries can implement laws to empower regulators to seize cryptocurrencies from the digital wallets of offenders. To enforce this, crypto-exchanges and wallet providers will have to implement necessary architectural changes. Conclusion Cryptocurrencies have emerged as the new tax havens due to their anonymity and decentralization, alongside structural problems of non-uniformity and inadequate information. Tax evasion through crypto-transactions is mechanized through various disparate means. The complexity of this problem requires an intervention at each stage of tax policy: information gathering, investigation analysis, and enforcement. At each stage, there must be a multi-level response using architectural and market tools alongside the law.

About the authors: Juan Perla is a partner in the New York office of Curtis, Mallet-Prevost, Colt & Mosle LLP, focusing on appeals and international disputes. Lise Johnson is international arbitration counsel in the firm’s London office. The authors thank associates Grace Condro and Jean Lambert for their contributions to this article. Photo by Juan Perla. On March 23, 2022, the US Supreme Court heard arguments in two cases that raise the question of whether US-based discovery is available for use in international arbitral proceedings. The first case, ZF Automotive US v. Luxshare, involves a commercial arbitration between private parties. The second, AlixPartners v. The Fund for Protection of Investors’ Rights in Foreign States, deals with a dispute between Russian investors and the Government of Lithuania under a bilateral investment treaty, which provides for investor-state arbitration (also known as investor-state dispute settlement or “ISDS”). These cases ask whether foreign or international arbitral tribunals fall within the meaning of 28 U.S.C. § 1782, the statute authorizing a district court to order discovery “for use in a proceeding in a foreign or international tribunal.” If so, any “interested person” may seek discovery from persons in the US for use in those arbitrations pursuant to the Federal Rules of Civil Procedure, which provide broader discovery than is otherwise available in arbitral proceedings and may result in sanctions for noncompliance. In answering this question, the Supreme Court will consider whether and how to take account of the differences between commercial arbitrations and ISDS for purposes of section 1782. Differences between commercial arbitrations and investor-state arbitrations Lower courts are split on whether section 1782 is available for use in commercial arbitrations (compare here and here with here and here), with some courts emphasizing the bargained-for benefits of arbitration—speed and efficiency—as reasons for not extending this provision to private arbitral tribunals. By contrast, there is a general consensus among lower courts that section 1782 applies to ISDS (see, e.g., here, here and here). In AlixPartners, for instance, the Second Circuit held that ISDS tribunals are covered by section 1782 because of their distinctive “functional attributes”—most critically that ISDS tribunals derive their jurisdiction from investment treaties between states, rather than from contracts between private parties. The US Government offered a different view. As outlined in an amicus brief in these two cases, and in a prior case raising the same issue, the US disfavors section 1782 for use in both types of arbitral proceedings, notably departing from lower courts on its understanding of ISDS. The US argued that ISDS “resembles private commercial arbitration in the most salient respects,” highlighting both the nongovernmental status of the arbitrators and the importance of efficiency in both types of proceedings. The US’ emphasis on the similarities between commercial arbitration and ISDS is notable for two reasons. First, it assumes that ISDS tribunals are all composed of privately appointed arbitrators. However, some investment treaties between the European Union and other states (at present, Canada, Vietnam, Singapore, and Mexico), refer ISDS disputes to adjudicators who are appointed in advance by joint committees of the relevant state parties and compensated by those states. Additionally, ongoing negotiations at the United Nations Commission on International Trade Law envision the creation of a standing multilateral investment court within roughly four years, which would also rely upon adjudicators appointed and paid by states. If the Supreme Court were to rule that section 1782 is not available for ISDS proceedings with private, party-appointed arbitrators, the result could be different for ISDS cases brought before a standing investment “court,” creating a dual track for investment claims against states—one in which US discovery is available and another in which it is not. Second, in other contexts, the US has taken the position that ISDS may warrant different, less efficient rules than commercial arbitrations due to the public interests inherent in ISDS. While confidentiality may be the default rule in commercial arbitration, the US has called for ISDS to be transparent and to allow for input from nonparties even though such openness may hamper the efficiency of proceedings. Regardless of what the Supreme Court decides with respect to commercial arbitration, it may be receptive to arguments about the distinctive characteristics of ISDS. During oral argument, several Justices seemed interested in understanding whether ISDS was more like dispute settlement before the World Trade Organization and state-to-state arbitrations than commercial arbitrations. Chief Justice Roberts observed that ISDS is “not a purely private undertaking,” noting its “sovereign character.” As the Chief Justice previously explained, the “uniqueness” of ISDS “should not be overlooked,” especially because those tribunals are endowed with the “power [a state] typically reserves to its own courts, if it grants it at all: the power to sit in judgment on its sovereign acts.” Indeed, ISDS tribunals hear disputes implicating important questions of governmental power such as national security measures, sovereignty over natural resources or the power to regulate public health and the environment. The decision to include or exclude ISDS tribunals under section 1782 could thus have profound consequences on how those cases are decided. Potential implications of permitting section 1782 discovery in investor-state arbitrations To date, use of section 1782 for ISDS has been relatively limited. But if the Supreme Court clarifies that this procedural device is available, there may be greater recourse to it. Since many investors bringing ISDS claims reside in the US or are connected to persons residing in the US, section 1782 could become an important tool for parties to obtain otherwise inaccessible evidence. Already, ISDS tribunals have demonstrated a willingness to receive evidence obtained through section 1782 discovery (see, e.g., here and here). As noted above, US courts have granted section 1782 discovery for use in ISDS proceedings, not only at the request of private investors, but also at the request of foreign states. For instance, in Republic of Kazakhstan v. Lawler, Kazakhstan attempted in the arbitration to obtain evidence from the investor to establish a jurisdictional defense. Unsuccessful in its evidence-gathering efforts before the tribunal, Kazakhstan then invoked section 1782 and sought the evidence directly from the investor’s sole officer and director in the US. The court granted the application. Shortly thereafter, the investor produced the requested evidence in the arbitration. There may be a variety of reasons why states may seek discovery to defend against investment treaty claims (e.g., gathering evidence on capital flows, due diligence, business plans and expectations, and possible corruption or other illicit activities), or to pursue counterclaims. In addition, investment treaties and arbitral decisions have been evolving so as to make a broader range of information relevant to ISDS claims, defenses, and counterclaims. For example, an ISDS tribunal has recognized that investors’ knowing misconduct can be more prejudicial to their claims than negligence. This, in turn, could support requests for discovery about investors’ knowledge and state of mind. Relatedly, new treaties and models are breaking ground by imposing obligations directly on investors and on their investments, and by providing that investors may face financial sanctions for violating standards found in soft law instruments such as the OECD Guidelines on Multinational Enterprises. Discovery may be useful in proving that companies, their investors, or their shareholders have breached relevant standards. Another potential user of section 1782 discovery may be any nonlitigant who can demonstrate that they are an “interested person” under the statute. This could include public interest groups whose participation as amici is expressly permitted under a growing number of investment treaties and arbitral rules governing ISDS cases. Potential amici may want to provide input to advance or protect their own discrete rights or interests (as might be the case if the investor is claiming property rights subject to competing claims), or to protect and promote general public interests (e.g., by elaborating upon and applying norms of corporate responsibility under international law). These groups may want to use section 1782 to strengthen their input. In sum, it is not a foregone conclusion that the Supreme Court will agree with lower courts that ISDS tribunals are covered by section 1782, especially in light of the US’ opposition. But if the Court does agree, then US-based discovery could become a more important tool in litigating ISDS claims in the future.

Hiep Nguyen (JD '23) was the Senior Online Editor of the Berkeley Journal of International Law and the Senior Technology Editor of the California Law Review. This piece is co-published with the California Law Review. A rally at Berlin’s Brandenburg Gate protesting the unprovoked Russian invasion of Ukraine. Photo by Leonhard Lenz. Article 1, Section 2 of the United Nations Charter enshrined the “self-determination of peoples”—the ability to choose one’s destiny—as a fundamental right of every country. In 1970, the UN General Assembly passed the Friendly Nations Declaration, which further defined this principle by making illegal any actions that would “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.” This declaration, complemented by similar language in Article 6 of the International Covenant on Civil and Political Rights, codifies each country’s right to self-determination free of forced foreign interference over their internal affairs or unprovoked invasion of their sovereign land. Russia broke these international laws when it invaded Ukraine after months of troop buildup along its and Belarus’s borders. Russian President Vladimir Putin sought to expand his power, conquer another Slavic people, and end Ukraine’s pursuit of a democratic future away from his grasp as a member of the European Union and North Atlantic Treaty Organization (NATO). His government stated that Russia would topple Kyiv in three days and that Ukrainians would welcome Russian forces as “liberators.” He lied to his people about “denazifying” Ukraine while bombing a Holocaust memorial and conveniently ignoring that Ukrainian President Volodymyr Zelensky is Jewish and the son of Holocaust survivors. He shelled civilians in maternity hospitals, assisted care centers, evacuation sites designated for safeguarding children, and apartment blocks, killing over 20,000 innocent Ukrainians since his needless war began: a number likely undercounted as Russia continues using force against civilians. He flattened Mariupol and massacred hundreds of Ukrainians execution-style in formerly occupied cities like Bucha, with plans for mass graves and mobile crematoria to cover up his atrocities and reports of alleged chemical weapons use. He gave the world a devastating glimpse at the deadly regional conflicts, driven by dictators’ desire for power, that plagued Europe for centuries before World War II. Yet, Ukrainians thwarted his ability to accomplish most of his objectives. They opened reservoirs and intentionally flooded roads to enhance the raputitsa (the Ukrainian mud season), immobilizing and trapping hundreds of Russian tanks north of Kyiv for Ukrainian farmers to seize. Supported by an unprecedented stream of arms provided by NATO and EU states, the Ukrainian Armed Forces (UAF) took advantage of poor Russian morale and planning to block Moscow’s advances on all fronts: stymying attacks from Chernihiv and Sumy to the east to Mykolaiv and Zaporizhia to the South by keeping key roads, ports, and airfields under Ukrainian control despite being outnumbered and outgunned. Using street blocks and buildings as shields, they have held Mariupol for nearly two months despite an intense Russian siege. And even in captured cities like Berdyansk and Kherson, citizen protests deeply undermined the Russian occupiers. This effective defense killed over 19,000 Russian troops and took out thousands of tanks, planes, vehicles, and other military equipment, forcing Russia’s defeat in its conquest of Ukraine and limiting the Russian military campaign to the Donbas region. By withstanding and pushing back Vladimir Putin’s unprovoked invasion, Ukrainians determined that their future as a sovereign state is theirs alone to decide. In doing so, Ukraine galvanized the West to mount decisive sanctions and military aid to Ukraine that have crippled Russia’s ability to wage wars of conquest, thereby enforcing international laws on self-determination. Ukraine’s resistance, the West’s unity, and Russia’s naked aggression have sharply elevated public support for the post-World War II order governed by international rules regarding self-determination, democracy, and human rights, and institutions like the EU, which were formed to place these principles in action. It has also proved the indispensability of NATO (whose mutual defense pact protects member states from any country that violates their sovereignty) to Eastern European member states who fear potential invasions by Russia and Western political and economic unity on deterring Russian aggression. These groundbreaking precedents may also protect the rights of vulnerable countries far beyond Europe’s borders. To begin with, Ukrainians determined their own democratic future by repelling Russia’s harrowing attacks on their land. Russian military vehicles destroyed by the Ukrainian Armed Forces near Kyiv. Russia and Western experts severely underestimated Ukraine’s morale and fighting capability against the Russian invaders. Photo by the Government of Ukraine. Putin, who has called the collapse of the Soviet Union one of the greatest tragedies of the last century, believes that Ukraine and most Slavic states constitute Russia’s historic sphere of influence. He thinks that Moscow is therefore entitled to control their affairs and ensure their friendliness to Russian domestic and foreign policies. Russia still exercises control over Belarus, and largely maintained a similar “friendly” arrangement with Ukraine for a decade until Ukrainians revolted and demanded their freedom in the Orange Revolution of 2004, and the successful Euromaidan of 2014. The latter resulted in the Kremlin-friendly president fleeing the country in disgrace and his replacement by duly elected successions of liberal governments. Some Western pundits parrot Putin’s imperialist beliefs and argue that Ukraine and its neighbors should not “anger” or “provoke” Russia by pursuing democracy or EU and NATO membership, and that NATO countries were wrong to allow eastward expansion after the collapse of the USSR. They also goad Kyiv into accepting massive territorial concessions in exchange for peace. However, this “westsplaining” (a term coined by Professors Jan Smoleński and Jan Dutkiewicz) perpetuates imperialism and colonialism by denying Eastern European states agency in determining their future. It instead treats states like Ukraine as pawns in a game of global chess. It ignores the violent history Ukraine and its neighbors experienced under Russian domination that motivates their efforts to join NATO and the EU. In the USSR, their citizens experienced political repression, cultural genocide, and the Holodomor: a famine that killed millions and was designed to subjugate Ukrainians and force them to accept Soviet rule. This does not even begin to describe the Kremlin’s brutal crackdowns on democratic dissidents in countries behind the Iron Curtain. Ukrainian refugees sheltering underneath a bridge near Kyiv after a Russian bombing. Photo by the Government of Ukraine. Westsplaining therefore amounts to a blatant violation of fundamental principles of international law, which clearly state that no country is entitled to determine another’s affairs, no matter how large, aggressive, or expansionist they make themselves out to be. If Ukraine seeks to join the EU and NATO, that is their choice. If Ukraine feels it cannot negotiate until its full territorial integrity is guaranteed—including full control and removal of Russian troops from the Donbas region–that is their choice. Not Russia’s. Not Europe’s. Not the United States’s. In addition, Ukraine’s resistance has united NATO and Europe to enforce international law by devastating Russia’s military and economic capability to wage war. EU Commission President Ursula von der Leyen first announced Allied sanctions against Russia for its illegal incursions into Ukraine. Photo by European Commission. International law has no true judicial enforcement mechanisms. For instance, Russia can withdraw from any International Criminal Court statutes they like, and neither Moscow nor Washington are parties to the International Court of Justice’s compulsory jurisdiction. This often leaves it up to alliances and countries to enforce international law. Examples include NATO enforcing UN resolutions against genocide by ending the mass killing of Muslim Bosnians and Kosovans in the Yugoslav Wars of the 1990s. Other examples include countries upholding international law against racial discrimination by divesting from and boycotting South Africa during its Apartheid era, and, most recently, Western countries sanctioning Russia for its illegal annexation of Crimea in 2014. Putin’s invasion of Ukraine, which clearly aimed to decapitate the country’s leadership and install a favorable regime, demonstrates how far Russia and other illiberal actors will go to expand their power and defy global norms on sovereignty. Putin has hinted that he will not stop with Kyiv. He previously invaded Georgia and occupied Moldova’s Transnistrian region under the guise of “protecting” Russian minorities. His ultimatums to NATO included a withdrawal of Allied forces out of Eastern European countries, including Baltic NATO states that fell under Soviet domination before 1991. Foreign policy analysts routinely suggest that Putin aims to rebuild the old Russian Empire and restore what he sees as lost Russian influence over its neighboring states, much like how Hitler annexed most of Central Europe in the 1930s. Russia’s terror, which portended continued and even more brazen upheavals of international law (and included threats to NATO members which would trigger its mutual defense pact), along with Ukraine’s spirited resistance, motivated the West to enforce global rules on self-determination and sovereignty. They did this, first, with the most destructive bevy of diplomatic and economic sanctions in modern history that have eroded both Russia’s ability to finance war, as well as its global and regional reputation. EU and NATO states have severed most Russian banks from SWIFT, the global payments system, and other key financial markets, effectively stopping Russia from importing any goods and freezing Russians’ ability to do business with the West. Russian companies may no longer raise money in most Western countries and are barred from exporting luxury items like vodka and diamonds. Russian oligarchs’ capital and assets have been frozen, its Nord Stream 2 pipeline is dead, and some Western nations have even gone as far as banning oil imports. This overwhelming response has prevented Russia from buying the microchips, materials, and equipment needed to replenish their military, and will cause Russia’s GDP to drop by over 30% by the end of 2022, abrading its ability to finance war. Moreover, Russia has been booted from both the Council of Europe and the UN Human Rights Council: severing many diplomatic channels it could have used to garner support for its war effort. On top of these $1 trillion measures, which have effectively destroyed and isolated the Russian economy, the West still has many tools left to punish Putin. This includes completely banning all Russian banks from SWIFT, ending all Russian oil sales in Europe, and eliminating Russia from both Interpol and the UN Security Council, among other sanctions. A young Ukrainian refugee awaiting resettlement at Przemyśl train station in Poland. Many parents have sent their children away alone or with older relatives to safer parts of Europe while they stay behind to defend their country. Photo by Mirek Pruchniki. Second, NATO and the EU have delivered extensive weapons shipments to Ukraine, including advanced anti-aircraft defense systems, tanks, firearms, and protective equipment. This sustains the Ukrainian Armed Forces without risking a direct NATO engagement with the Russians. NATO complemented these weapons with a vastly increased troop presence and air coordination in NATO member states bordering or close to Russia—this enhanced military presence was welcomed by Eastern European states. NATO and the EU clearly and unmistakably warned Putin that Allied countries will fulfill their Article 5 commitments to defend every inch of NATO territory should Russia decide that its incursions into Ukraine are not enough. These unified Western actions amount to a clear enforcement of international law on self-determination and sets a precedent of shattering economic consequences for any country that attempts to invade another sovereign state. This is not 1914. It is not 1938. It is 2022. The world aspires to rules that prevent unprovoked incursions—not regional powers or the whims of dictators. And Allied nations can and will give these rules teeth. Lastly, the unprecedented unity of the West in its defense of Ukraine and international law has strengthened the rules-based world order to previously unseen levels. This will elevate democracy, human rights, and sovereignty throughout the globe. EU, G7, and NATO leaders standing shoulder-to-shoulder, united in their commitments to Ukraine and democracy. Photo by White House. Public support for Ukraine continues to reach new highs, with most Americans and Europeans supporting the war effort and the global institutions (like the EU and NATO) responsible for keeping the peace after World War II. As a partial result of this elevated public sentiment, EU and NATO countries have united to sanction Moscow and send humanitarian and military relief to Kyiv. These decisions allowed Allied countries to create a resounding collective impact that few predicted months and years ago, especially after the chaos of Brexit, populism, and the Trump presidency. Putin not only bet against this unity but actively sowed division in Allied nations for his benefit. He was wrong and has paid a heavy price. The newfound unity of the West will have broad and transformative effects for the rules-based world order, strengthening its ability to stand up for smaller countries’ sovereignty and democratic institutions, just like it has in Europe. This unity can first be seen in a fundamental reset in refugee policy towards Eastern Europe, with Poland taking in over two million Ukrainians displaced from war, Romania over 500,000, and the United States over 100,000 (a smaller number since many Ukrainians prefer to remain in Eastern Europe and return to their homes to rebuild after fighting ends). Thousands of volunteers have poured into Ukrainian border regions to help migrants access food and shelter—an effort Western countries have supported with billions of dollars in humanitarian relief money. The growing threat of Russian aggression has motivated countries once on the fence about NATO membership to finalize applications to the Alliance—including Finland and Sweden, which are set to join by the end of the summer. Their additions will achieve the exact opposite of what Russia desired from its aggression–more NATO neighbors and greater enforcement of international law on self-determination. Polish volunteers assist Ukrainian refugees in Przemyśl Główny. Poland has taken in roughly 2.1 million refugees fleeing Russia’s invasion as of late March 2022, or roughly 5% of its population. Photo by Pakkin Leung. However, this reset is truer nowhere else than Asia, where China still muses about supporting the Russian invasion, actively threatens Taiwan, and continues to conduct incursions into the South China Sea and South and Southeast Asia that skirt the edges of the international law on self-determination. These actions are in addition to ethically questionable investment practices that have led African, Latin American, and Middle Eastern countries to owe Beijing large sums of debt and prevented them from condemning China’s egregious human rights violations against Uighur Muslims and Tibetans. A resurgent West, working together with its democratic partners in the Asia-Pacific, could coalesce again to hold China accountable for future violations of international law. Sanctions that could devastate Beijing’s economy and sever its goods and supplies from the global supply chain are all on the table, just like they were for Russia. Hu Wei, who directs the Chinese government’s public policy institute, recently argued that democratic countries have recently formed regional alliances like the Quad (Australia, India, Japan, and the US) and AUKUS (Australia, the United Kingdom, and the US) that deepen their economic and defense cooperation in the Asia-Pacific. This already limits China’s potential for territorial incursions. However, with an enhanced reputation and strengthened resolve from their success in countering Russia’s authoritarianism, these democratic countries and others may be willing to form new supply chains and trade agreements with the West that decrease their dependence on China and bolster their ability and willingness to sanction Beijing in the event of a Chinese international law violation. This would effectively erode Beijing’s growing influence in the region and empower not only the defense of existing Asian democracies, but also inspire even more democratic reform within Asia. Hu correctly analyzes that China’s only choice in the wake of Russia’s failure in Ukraine is to avoid antagonizing the West and its democratic partners. That means no more territorial incursions, human rights violations, or support for rogue states like Russia, whose invasion China has so far backed off from funding due partly to Western pressure. Therefore, the deterrent of strengthened global democracies have the potential to effectively enforce international law, protect the sovereignty of smaller states across Asia and Europe, and perpetuate the rules-based, liberal world order for decades to come. People taking to the streets in Europe to support Ukraine. Photo by European Commission. “Be not afraid,” as Pope John Paul II continuously repeated in the face of Soviet repression and President Biden echoed in his resounding Warsaw speech in late March. The horrors of Russian aggression—communities terrorized by cluster bombs, children hiding from shelling in makeshift shelters, families starving to death in sieged cities—demonstrate the stakes at hand if the world is governed not by international norms and rules regarding self-determination, human rights, and democracy, but instead by regional powers hellbent on territorial expansion. This is how the world existed for millennia before World War II, and why per capita deaths from wars were consistently and disturbingly high prior to the 1940s. But Ukrainians were not afraid. They refused to acquiesce and turn back the clock on liberty. In defending their sovereignty, they effectively united the West to enforce international law on self-determination through a devastating array of sanctions against Russia. The precedent set by these developments strengthen the rules-based world order and guarantee more sovereignty, democracy, and human rights for other vulnerable countries far beyond Europe’s borders.

Article by: Sahaj Mathur Photo available here. Introduction India’s interaction with the international investment regime experienced a paradigm shift after the 2011 arbitral tribunal decision in White Industries v. The Republic of India. In the White Industries arbitration, Australian corporation White Industries alleged that the Republic of India (India) breached its obligations under a bilateral investment treaty (BIT) between India and Australia. The tribunal granted White Industries a $4 billion award, leading to India’s heightened caution and suspicion against the international investment regime. As a knee jerk reaction to the White Industries arbitration, India terminated a majority of its BITs, and in 2016, introduced a new Model BIT. India intended to use this model as a template as it renegotiated its BITs. India designed its Model BIT to address the inherent asymmetry in the earlier BITs, which upheld the rights of investors without imposing any corresponding duties. In this light, India introduced a Corporate Social Responsibility (CSR) clause in Article 12 of the Model BIT. The CSR provisions reflect a growing global concern with the inability of the investor-state arbitration system to address the impact of foreign investment on human rights, the environment, corruption, and labor rights of the host state. The inclusion of the CSR clause in the Model BIT, as well as in other new-age BITs, can be seen as a response to the lack of accountability of investors under the International Investment Regime for their conduct in foreign states. The CSR clause raises crucial questions regarding its scope and functionality. In particular, it is unclear how an investor-state arbitral tribunal will interpret and apply the CSR provision when it interacts with other provisions of the Model BIT. Deconstructing Article 12 of the Indian Model BIT: CSR and India’s Investment Regime A significant innovation in India’s Model BIT is the imposition of duties on investors. India’s approach presents a shift from the traditional regime, which imposed liabilities solely on the host state. The CSR Clause contains four key features. First, the CSR Clause applies directly to investors, rather than to host states. In contrast, previous “indirect” CSR clauses imposed duties on States to promote responsible corporate conduct for corporations operating within their jurisdiction. The indirect CSR clauses required the state to take any action necessary through its domestic law and policy to ensure compliance with CSR standards. If the state failed to facilitate compliance, then the legal effect of the indirect CSR Clause would be extremely limited, since investors held no CSR responsibilities. In contrast, the direct CSR clause under Article 12 applies directly to investors, making them responsible for complying with internationally recognized CSR standards. As Section III explores, the direct CSR clause can have a significant role in Investor-State disputes. Second, the CSR Clause focuses on “non-investment concerns” by emphasizing labor, human rights, environmental, corruption, and community relations concerns. The inclusion of these issues also represents an effort at rebalancing India’s interaction with the international investment regime to safeguard its right to pursue its policy objectives. Given the growing global concern against the international investment regime, the inclusion of such non-investment concerns within the existing regime can provide a significant roadmap to address some of the drawbacks of the current system. Third, Article 12 expressly states that investors shall incorporate “internationally recognized standards” of CSR into their business practices. However, Article 12 does not state which particular international CSR standards apply, making interpretation challenging. To overcome this uncertainty, a tribunal could look to several international instruments, including the OECD Guidelines for Multinational Enterprises, the Ten Principles of the UN Global Compact, and the UN Guiding Principles on Business and Human Rights. Fourth, Article 12 characterizes the CSR clause as voluntary. The voluntary nature of the provision implies the absence of any binding obligation on Corporations to comply with the aforementioned CSR standards. Thus, within the context of Investor-State Dispute Resolution, a state cannot claim the breach of a CSR principle as a “claim” or “counterclaim” against an investor. Existing literature analyzing the Model BIT has criticized the voluntary nature of the CSR provision. In principle, a binding and mandatory CSR provision may appear to be an appealing suggestion. However, under the existing framework of public international law, corporations cannot be definitively treated as subjects of international law on which obligations can be imposed. Therefore, imposing human rights and environmental obligations on corporations lacks doctrinal support. Negotiations on a proposed Business and Human Rights Treaty, which would impose such obligations on corporations under public international law are ongoing. However, unless these negotiations materialize into a legally binding treaty framework, there is minimal theoretical justification for placing CSR obligations on investors. However, despite a lack of doctrinal support for imposing a mandatory obligation, a soft law document may still carry significance and legal effect for investors. Corporate Social Responsibility and Investor-State Dispute Settlement: Towards a New Approach? Article 12 may introduce social and environmental concerns to the inquiry undertaken by an investor-state tribunal, particularly at the damages stage. While an investor’s breach of internationally recognized CSR standards may not give rise to a claim, they may factor into a tribunal’s assessment of damages. The dissenting opinion in Bear Creek v. Peru supported such an approach. In the dissenting opinion, the tribunal asserted that when determining the compensation owed to an investor, certain activities of the investor must be taken into account. Such activities include the investor’s due diligence, environmental impact assessment, and social impact assessment. Thus, the amount owed to an investor can be significantly lowered if the tribunal observes that the investor failed to comply with principles of CSR. Other tribunals have employed this methodology, as in Biwater Gauff v. Tanzania. Article 26.3 of the Indian Model BIT and the footnote to the Article provide a preexisting basis for adopting this approach. Article 26.3 provides that a tribunal shall reduce damages owed to an investor after taking into account mitigating factors that would reduce the harm. The footnote suggests that such harm can include “unremedied harm or damage” to the local community or environment. Article 26.3 has been criticized for providing arbitral tribunals with wide discretion to determine what would constitute a mitigating factor, given the vagueness of the provision. It is proposed that Article 26.3 can be interpreted in light of Article 12 of the BIT. Thus, the mitigating factors mentioned in Article 26.3 can be derived from the internationally recognized CSR principles in Article 12. Therefore, investor conduct that breaches these provisions would constitute a mitigating factor which would reduce their compensation. As Markus Krajewski argues in the dissenting opinion in Bear Creek, such a methodological approach would have a direct effect on investors’ behavior. Given the quantifiable impact on damages owed to an investor if a breach is found, the proposed approach can provide an effective mechanism to ensure investors’ compliance with their CSR obligations. Thus, the proposed approach can be significant in introducing non-investment concerns within investor-state arbitration. CSR clauses in BITs have arisen as a response to the inherently lopsided nature of international investment law characterized by the lack of investor accountability. Article 12 of India’s Model BIT seeks to reinforce its right to regulate to achieve its policy objectives. These CSR clauses are considerably broad in scope, allowing them to serve as the bridge between public policy concerns and investor-state arbitration, which have long been seen as incompatible. Although Article 12 is not directly enforceable, the development of public international law on legally binding corporate obligations would further support these CSR provisions. This could lead to a situation where India could even file a claim against an investor for not acting in accordance with its CSR obligations.

About the authors: Manjri Singh and Anupriya Nair are final year students at NALSAR University of Law, India. Photo available here. Introduction Apple released its iOS 14.5 software update to enhance consumer privacy by presenting users with the App Track Transparency prompt. The prompt gave users the explicit option to allow apps to track their behavior. Although Apple had already given users the option to deny apps from tracking, this was an “opt-out” option and required consumers to seek it out. Apple’s privacy update raises new privacy and competition questions that will inevitably capture the attention of regulatory and enforcement bodies across the world. Regardless of what the outcome is, the fate of Apple’s update will set the standards for privacy and competition compliance across the industry. The App Track Transparency Prompt Apple explains that the new prompt offers consumers greater freedom to choose their level of privacy for many types of data. Apps often collect more data than necessary to create digital profiles that they sell to third-parties, which then use this data to target advertisements and predict users’ decisions. The prompt impacts this excess data, but it does not affect the data that apps collect through users’ interaction with the apps themselves. This development is part of Apple’s broader move towards improving consumer privacy, which was underscored through the addition of a privacy information section on App Store products. However, Apple’s own apps and data collection fall outside the purview of this update. Impact on the Consent Threshold Until the release of iOS 14.5, there was a system that automatically collected Identifiers for Advertisers (IDFAs) from user devices. Often, this collection was not explicitly mentioned to the user at the time of collection. Users could only circumvent this system by manually opting out of IDFAs via a reset option in the settings menu. These concealed opt-out options robbed users of the opportunity to take action to prevent apps from using their data, making the system inherently problematic. In the United Kingdom (UK), the Information Commissioner’s Office has interpreted “consent” under the General Data Protection Regulation (GDPR) to mean opt-in consent, requiring deliberate and clear affirmative action. Therefore, opt-out consent cannot meet the GDPR’s standard of mandatory deliberate and affirmative action. The failure to opt-out of IDFAs, for example, is insufficient to obtain legitimate and deliberate consent. The iOS 14.5 passes the consent threshold for IDFAs. Users can now choose to not opt-in when they first launch an app, rather than hunting through the settings menu. This requirement is not only limited to IDFAs, but also includes opt-in consent for registered email addresses. By requiring companies to obtain users’ express permission through a prompt, this update advances two core values of privacy law: giving users adequate notice and choice. Interaction of Privacy and Competition Law Apple’s pro-privacy efforts may violate competition laws, which regulate the unfair exercise of market power. In the European Union (EU), which has some of the most robust competition regulations and enforcement mechanisms, competition policy is rooted in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Apple’s update may violate Article 102, which prohibits companies from abusing market power. Additionally, the update may constitute anticompetitive conduct under a leveraging theory. Abuse of Market Power Under Article 102, abuse includes imposing unfair trading conditions and margin squeezing. However, the European Court of Justice has held that abusive conduct may be reasoned through an objective justification. Apple’s privacy update is unlikely to fall under the category of unfair trading conditions because Apple has an objective privacy justification, and because this privacy enhancement benefits consumers. This is reflected by the French Competition Authority’s refusal to interfere with the iOS 14.5 update. After investigating the matter, the Competition Authority reasoned that a dominant player was free to set the rules for accessing its services as long as the rules did not violate applicable laws. The Authority determined that Apple’s new rules were not abusive simply because they negatively impacted other companies, and it recognized that the new rules would strengthen users’ ability to protect their privacy. There is a stronger argument that Apple’s preferential treatment of its own apps is anticompetitive. This preferential treatment may fall within the margin squeeze theory of harm because it raises compliance costs for rivals in the downstream app market. This harm occurs when a dominant upstream firm, competing in a downstream market, provides a key input to its downstream rivals at prices and terms that foreclose competition. 2. Leveraging Market Power in the App Download Platform Market While not enumerated in the TFEU, a firm may also be liable for leveraging its dominant position in one market to gain an advantage in another market. Apple wields dominance in the app download platform market through its App Store. Using this dominance, Apple gives preference to its own apps by exempting them from its new privacy requirements. Therefore, only Apple’s rivals in the downstream app market suffer increased compliance costs. Although there is limited jurisprudence on leveraging theories, a leveraging theory argument prevailed in the Google Search (Shopping) case. The Commission held that Google abused its dominant position in the online general search market by giving its own shopping service a prominent position in search results relative to its competitors’ services, diverting traffic to its own service. The EU is looking to clamp down on leveraging conduct through legislation. The proposed Digital Markets Act specifically disapproves of such self-preferencing conduct. Apple’s preferential treatment towards its own apps fits in the “Google Search” framework, and the growing attention on leveraging opens the door for enforcement agencies to intervene under a leveraging theory. 3. Limiting Consumer Choice Is Anticompetitive Given Apple’s dominance in the app download platform market, its data collection consent policies may be inherently problematic if they restrict consumer choice. Apple’s new privacy protections give users limited options. Users may either accept the privacy policy or decline. In a similar vein, Facebook’s data collection policies have been investigated by the German competition authority. The authority found that Facebook abused its dominance in the social network market by subjecting its users to a take-it or leave-it policy that restricted consumers’ consent options. By analyzing consumers’ consent options as a non-price parameter for anticompetitive conduct, rather than as a privacy right, the authority brought the issue of consumer consent within the reach of competition laws. The Future of the Advertising Technology Ecosystem Apple’s opt-in requirement will help shape the way in which privacy protections function within the larger scope of the advertising technology industry. Other leading companies will be forced to follow suit and keep up with the higher standards established by Apple’s pro-privacy efforts. Companies that have built business models which rely heavily on the collection of IDFAs without an opt-in option will need to reinvent their data strategies to ensure compliance with the GDPR and the latest updates of their competitors in the realm of privacy protection measures. Changes in iOS are likely to lead to changes in Android, and in companies operating out of the operating system sphere as a whole. When Apple proposed the concept of IDFAs, Google developed its own system of identifiers called Google Advertising ID (AAID). Further, Google followed suit when Apple removed third-party cookies from Safari by implementing the same change in Chrome using a privacy sandbox . Similarly, Google will likelyenable an opt-in option for its AAIDs to keep up with the changing ad tech ecosystem and ensurecomparative compliance with the GDPR guidelines. The likelihood of these outcomes is contingent on the decisions of competition law authorities and their stances on privacy and competition. Accordingly, if competition authorities penalize Apple, they may crystallize competition laws and indirectly improve compliance among other big tech companies. Given the acute interest of competition authorities in promoting competition, checking excesses, and scrutinizing spill-over effects in the ad-tech space, greater compliance grows increasingly likely.

Justine DeSilva (J.D. Candidate, Class of 2024) is a Contributor to Travaux. She is primarily interested in sexual and gender-based violence issues, both domestically and in the scope of international law and human rights. Justine holds a B.A. in Comparative Studies in Race and Ethnicity with Honors in the Arts from Stanford University and an M.Sc. in Gender from the London School of Economics and Political Science (LSE). In her free time she enjoys musical theater and embroidery. Photo available here. Introduction: On February 15th, the United Kingdom’s Prince Andrew, Queen Elizabeth II’s second son and the Duke of York, settled a civil lawsuit filed against him for the alleged sexual abuse of an American minor in the early 2000s. The plaintiff, Virginia Giuffre, sued the prince for allegedly sexually abusing her on multiple occasions and in different countries when she was 17 years old. At the time of these alleged incidents, Giuffre was being sex-trafficked by notorious trafficker Jeffrey Epstein and his co-conspirator, ex-girlfriend, and employee Ghislaine Maxwell, both of whom were close personal friends of the Prince. Giuffre first came forward about Prince Andrew when she filed a defamation lawsuit against Epstein and Maxwell, but the documents were only unsealed in 2019. Since then, the story has dominated international news headlines and spurred endless discussion on social media platforms. The flames were fanned even further by an interview the Prince gave to the BBC to proclaim his innocence. British news outlets denounced this appearance as a “car crash.” Despite this, Giuffre didn’t file an official case against the Prince until August 9th, 2019. Giuffre chose to file this case in federal court in the Southern District of New York (S.D.N.Y.), a jurisdiction that includes New York City. Widespread media coverage has dealt only piecemeal with the complicated legal questions arising from this case, and there have been no sources comprehensively explaining the legal process involved in choosing the proper court. The purpose of this article is simple: to explain the international dynamics at play here when Giuffre selected the court, or “forum,” for suing a foreign prince for sex abuse. Part I: Background of the Allegations Before tackling the legality of forum selection, it is essential to provide context for this case. Virginia Giuffre was just 16 years old and working at Trump’s Mar-a-Lago resort in Florida when she was first approached by Ghislaine Maxwell. After luring Giuffre to Jeffrey Epstein’s home under the guise of a job interview, Maxwell instead began instructing Giuffre on how to massage Epstein’s naked body. Giuffre feared how powerful the two of them were; Epstein was a billionaire financier and Maxwell was a well-connected British socialite. Guiffre, on the other hand, was a child who had been in and out of foster care, had already experienced sexual and physical abuse, and was incredibly vulnerable. Maxwell and Epstein quickly coaxed these details out of her and capitalized on them to trap Giuffre into a years-long cycle of subsequent sex abuse. They also passed Guiffre around to their powerful friends “like a platter of fruit.” One such friend was allegedly Prince Andrew. According to the complaint, Maxwell, Epstein, and Prince Andrew forced a 17-year-old Giuffre to engage in sex acts and intercourse with the Prince on multiple occasions: at Maxwell’s London home, at Epstein’s New York City mansion, and on Epstein’s private island in the US Virgin Islands. During each of these instances of abuse, Giuffre was “compelled by express or implied threats,” at times from the Prince himself, to engage in these acts. In addition to sexual assault and battery, the complaint accuses Prince Andrew of causing “significant emotional and psychological distress and harm” that continues to affect Giuffre to this day. Part II: S.D.N.Y. as a Proper Venue New York vs. US Virgin Islands vs. the United Kingdom Giuffre chose to bring this case in S.D.N.Y., which encompasses Epstein’s Manhattan mansion at 9 East 71st Street. In theory, Giuffre could have sued in New York, in the US Virgin Islands, or in the United Kingdom, since instances of the alleged abuse took place in all three locations. In fact, one of the major pieces of evidence is a photograph allegedly taken in the UK at Maxwell’s London home immediately prior to one of the alleged incidents. In the photograph, Prince Andrew has his arm wrapped around Giuffre’s waist, with Maxwell smiling in the background. This photograph has been so widely disseminated that, in his aforementioned interview with the BBC, Prince Andrew himself fielded questions about it. However, civil claims in either the US Virgin Islands or the UK would likely have been time-barred, due to the nearly twenty years that elapsed from the alleged events to the time of the filing. In the US Virgin Islands, there is no statute of limitations for the criminal prosecution of felony child sex abuse claims and the statute of limitations for the criminal prosecution of misdemeanor child sex abuse claims is 1 year. To file a civil suit in the US Virgin Islands, however, Giuffre would’ve only had until her 23rd birthday to file her civil claim, which passed in 2006. Bringing her claim in England would have given her slightly more room for discretion. Giuffre would have had until her 21st birthday to file her civil claim, which passed in 2004; however, the court has discretion to allow such a claim to be brought, even if the statute of limitations has expired. In making this determination, a court must consider a list of factors laid out in the Limitation Act of 1980 33(3)(a), including “the length of, and the reasons for, the delay.” The court is then tasked with deciding whether the reasons given are equitable enough to justify extending the limitation period. In England and Wales, there is no statute of limitations for criminal prosecution of child sexual abuse. In this case, considering the defendant is one of the most senior figures of the British monarchy, it is unlikely that a court would grant such an extension. Though the royal family has more often been on the plaintiff’s side of legal action (especially in regards to media and invasion of privacy), it is extremely rare for a British royal to be a defendant. It is not difficult to imagine that the Crown and its interests would have exerted immense pressure (at least behind closed doors or implicitly) on the courts not to grant such an extension. Attempting to bring the case in the UK would therefore have resulted in an uphill legal battle for Giuffre to even get the case admitted in the first place. On the other hand, Giuffre’s claim was not time-barred in S.D.N.Y. Former governor Andrew Cuomo (who has since resigned due to allegations of his own sexual misconduct) signed New York state’s Child Victims Act into law in 2019, which specifically addressed this issue. The Child Victims Act briefly lifted the statute of limitations in civil actions for sex offenses against minors. Originally, the statute of limitations in New York began to run when the victim turned 18, which for Giuffre would have been in the summer of 2001. Giuffre would have had between one and five years to file her civil claim. The Act temporarily lifted the statute of limitations completely so that survivors of any age could file their civil claims in the two-year window from August 13th, 2019 to August 13th, 2021. This was referred to as a “lookback window.” Giuffre filed her complaint within the last week of this window, on August 9th, 2021. Starting on August 14th, 2021, the Act permanently amended the statute of limitations so that survivors are allowed to bring civil actions until they reach the age of 55. Even if she had continued to wait, Giuffre would’ve had until August 2038 to file her claim in New York, which likely would not have been the case in either of the other potential forums. 2. Federal vs. State Court Giuffre filed her case in federal court, despite invoking New York state laws on the sexual abuse of minors. She did this because there was diversity jurisdiction over the parties. The first requirement to establish diversity jurisdiction is showing that no plaintiff shares a domicile with any defendant; the goal is to avoid any prejudice an out-of-state defendant might face from a legal action in state court. Domicile is an important term here: it is defined as the “true, principal, and permanent home” of the citizen. In this case, diversity of citizenship was met because the parties were domiciled in a US state on one side of the action and in a foreign country on the other side of the action. Prince Andrew resides permanently in the United Kingdom, and Giuffre is an American citizen who claims residency in Colorado. The second requirement for diversity jurisdiction is that the amount being sued for is greater than $75,000. The amount in controversy, as stated in the complaint, was over $75,000, though Giuffre left the exact amount “to be determined at trial.” Despite meeting the threshold for diversity jurisdiction at first glance, there was an issue of residency that emerged–but it was not about Prince Andrew. The Prince’s American attorney, Andrew B. Brettler, tried multiple strategies to get the case dismissed, one of which was filing a motion calling Virginia Giuffre’s US residency into question. The motion, which was filed in late December, claimed that Giuffre had actually lived in Australia for all but two of the last nineteen years. It also claimed she had been living consistently in Australia since at least 2019 with her husband and children, indicating her intent to remain. . The motion requested that discovery in the case be halted until Giuffre’s true domicile could be attained through a specific two-hour deposition. An individual’s legal domicile is determined based on their residency at the time a case is filed. See Padilla-Mangual v. Pavia Hosp., 640 F. Supp. 2d 128 (D.P.R. 2009). Whether a citizen intends to remain in that particular place indefinitely is also relevant. Giuffre’s lawyer responded to the motion by highlighting the timing of it: the Prince and his counsel had months to contest Giuffre’s domicile, but chose to file this motion two weeks before the court was slated to rule on the Prince’s motion to dismiss (which had been filed in October 2021). This is not a strong legal argument–if it’s true that Giuffre was not actually domiciled in Colorado at the time of the filing of the complaint, and had no intention to return permanently to the US, federal court would not actually be the proper venue for her case. Giuffre’s lawyer seems to peripherally acknowledge this; he writes that if their contention happened to be correct, Giuffre would just refile in New York state court and the case would continue regardless. However, the judge denied the Prince’s motion on December 31st, 2021. Judge Kaplan stated that the Prince’s counsel had not yet officially raised a defense of improper venue–the motion was not a motion to dismiss, just essentially a motion to delay discovery on the Prince. The issue of Giuffre’s true domicile did not progress, which could be for a variety of reasons. It would make the most sense to assume it was due to either: 1) the satisfactory nature of the domiciliary documents provided by Giuffre, or even more likely 2) the Prince’s increasing fear of being deposed under oath and/or of Giuffre’s counsel continuing discovery. Either way, a quick settlement was reached, thus extinguishing the final controversy over the proper forum for this case. Conclusion: There is not adequate space in this article to delve into the other substantial international legal hurdles this case faced before it was settled. Among them were the difficulties Giuffre’s lawyers faced in personally serving Prince Andrew with documents, the court’s inability to compel Prince Andrew to appear in or comply with the case, the question of enforcing the case’s outcome in the UK, and the question of sovereign immunity. However, the intention here was to provide a brief glimpse into the international legal considerations at play in this case’s very existence, and hopefully further transparency through legal analyses of these additional issues is forthcoming.

About the author: Maria Oliveira (J.D. candidate, 2024) is a Contributor to Travaux. She received her Bachelor of Arts in History from the University of Connecticut in 2021 and is interested in international and comparative law. In her free time, she enjoys playing piano and baking pies. “Cyber attacks” by Christiaan Colen available here. Introduction The ongoing war in Ukraine is bringing cyberspace, the new frontier of 21st century warfare, and its implications for International Humanitarian Law (IHL) into the forefront. Even before Russia’s invasion, Ukraine has been no stranger to Russian cyber attacks. It has been described as a “test ground” for Russian cyber attacks, including election interference, power grid disruptions, malware, and disinformation campaigns. For example, the Russians are alleged to be behind NotPetya, a destructive malware set off against Ukrainian public and private sectors in 2017. This wiper attack that irreversibly encrypted data spread globally, affecting international corporations and causing more than $10 billion in global economic losses. Mere days before Russia invaded Ukraine, Microsoft detected a new malware, FoxBlade, targeting Ukraine’s government and financial institutions. Microsoft announced that it worked with the Ukrainian government to stop the malware and expressed concern about how Russian attacks on civilian digital institutions violate the Geneva Conventions. Understanding how cyber operations fit into the IHL framework as set forth in the Geneva Conventions and its Additional Protocols must be a critical part of the international response to Russian aggression. One aspect in particular that Russian tactics highlight is whether the Conventions may be interpreted to prohibit the indiscriminate targeting of civilian data. I argue that data should be considered an object for the purposes of IHL so that civilian data of all types has a baseline level of protection under the principle of distinction. “Objects” and the Principle of Distinction Civilians and their property are protected in IHL under the principle of distinction. The principle of distinction requires that parties to an armed conflict must distinguish between military persons/objects and civilian persons/objects. Only military objectives (i.e., military persons or objects), may be targets of an attack. Cyberspace pushes the boundaries of what we consider to be “objects,” because it encompasses intangible things where their destruction would nonetheless have tangible ramifications. A widely accepted principle is that a cyber operation that causes the types of damage that traditional kinetic means (i.e., through use of motion and energy) could have achieved constitutes a cyber attack, and thus is subject to IHL and to the same principle of distinction that regulates targeting in kinetic attacks. The Tallinn Manual 2.0, an authoritative research initiative that provides guidance on how current International Law applies to cyberspace, articulates the principle as follows: “A cyber attack is a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects.” But what happens when the target of the operation is not the computer hardware itself, but the intangible data stored therein—such as the Russian wiper attacks targeting data held by civilian institutions? Per the Tallinn Manual’s definition, a cyber operation that targets data is only a cyber attack if data is considered an “object.” This question is much more controversial. The Textualist Position The majority of the authors of the Tallinn Manual take the textualist position that data is not an object. They point to the Commentary of the International Committee of the Red Cross (ICRC), which elaborates on and gives interpretation guidance for the Geneva Conventions and their Additional Protocols. The ICRC’s Commentary says that an object is something that is “visible and tangible.” Because data is intangible and does not fall within the “ordinary meaning” of “object,” cyber operations intent on destroying data do not qualify as attacks subject to the traditional principles of IHL. This does not mean the majority believes that such operations aren’t subject to any restrictions. They instead offer additional rules that can protect specific types of civilian data. For example, Tallinn Manual 2.0 Rule 132 states that “Personal medical data required for the treatment of patients is likewise protected from alteration, deletion, or any other act by cyber means that would negatively affect their care, regardless of whether the act amounts to a cyber attack.” Although such rules disallow certain disastrous results, they do not get to the root of the problem, and still leave vulnerable types of civilian data that, while perhaps not as immediately critical as medical data, are still critical to civilians’ livelihoods and wellbeing. Permanent deletion of data such as banking and tax information, social services data, email communications, and social media accounts would have severe consequences for civilians, and thus are also worthy of protection from indiscriminate targeting. The Analogist Position Some scholars and a minority of the Tallinn Manual authors support an analogist approach, saying that looking at the plain meaning of “object,” and other words such as “tangible” and “intangible,” is not enough. The analogists posit that by requiring objects to be “visible and tangible,” the authors of the ICRC Commentary were trying to exclude abstract notions—such as goals, aspirations, or civilian morale—in being legitimate targets. Because the authors were not imagining cyber warfare at the time of writing the Commentary, it makes more sense to determine whether data is more similar to the “visual and tangible” things they had in mind, or the abstract notions they were trying to exclude. While it is true that data is generally thought to be an intangible thing, surely it is not as intangible as a person’s aims, thoughts, or psychological state of mind. Data is much more similar to a bridge than to a population’s morale, in that it is something that can be directly measured and observed, not an abstract idea that can only be evaluated subjectively. A Functional Approach Another way to frame this issue is to look at data for what it really is: information. Computers contain data in the same way that books and films and other physical media contain information. Consider an operation to target and burn up the financial workbooks of a swath of civilian businesses to ruin the local economy. That would be illegal because it is physically targeting civilian objects. But from a functional perspective, the physical workbooks are just vessels. Their value lies not in their physical nature, rather in the information they contain. It just so happens that in order to destroy the information, the physical medium must be taken down with it. We are at a point technologically where critical information can be destroyed without impacting the physical medium. It should not matter if an operation targets the financial information in a physical book, or the financial information in a Microsoft Excel sheet. The impact is the same. Whether physical, kinetic damage occurs is completely arbitrary. International Consensus? International consensus on whether data can be considered an object has not yet matured. In addition to the disagreements among the authors of the Tallinn Manual, there is disagreement among the small number of states that have issued position papers on the topic. States such as Israel and Denmark take the textualist position that data is not an object because it is not tangible. Romania and Norway take the analogist position that data is an object because it acts like one, while France takes a middle-of-the-road approach. Conclusion Although the question of data’s status as an object is presently unresolved, the war in Ukraine is demonstrating that it can not be left unresolved for long. Russia has already demonstrated that it has no problem indiscriminately targeting civilians and civilian objects in kinetic warfare, and it has directed cyber attacks at civilians before the war. There is no reason to think Russia would not implement indiscriminate cyber attacks in bello, and when it does, there is no reason why operations targeting civilian data should not be subject to the same principle of distinction that physical objects already enjoy. The easiest way to ensure these protections is to adopt an interpretation of “object” that encompasses cyber data.

About the author: Philip Alexander is a law student at the National University of Juridical Sciences, Kolkata. "Pre-Exposure Prophylaxis (PrEP)" by NIAID available here. Introduction The United States' Food and Drug Administration (FDA) recently granted Emergency Use Authorization to AstraZeneca’s Evusheld as pre-exposure prophylaxis (PrEP) to COVID-19 for immunocompromised patients. The product will be administered to at-risk patients who are moderately to severely immunocompromised due to a medical condition "or for whom vaccination with any available COVID-19 vaccine… is not recommended due to a history of severe adverse reaction." Although beneficial in preventing the transmission of COVID-19, several questions are raised on the pharmaceutical monopolization of PrEPs, with the HIV/AIDS epidemic as precedent for the inequitable distribution of medication to ethnic and racial minorities. Gilead Sciences dominates the market for HIV PrEPs in the United States, manufacturing the only two FDA-approved PrEPs, Truvada and Descovy, providing up to 99% protection against HIV infection. However, the drugs are priced at $1500 per month but cost only $6 to manufacture, restricting accessibility to poor minority groups who form a significant percentage of HIV patients - Black and Latino men have the highest and second-highest infection rates. However, despite these disproportionately high rates of infection, only 1% and 3% of PrEPs were prescribed to Black and Latino men, respectively. This disparity in the distribution of HIV medication is attributable to a prominent market monopoly by Gilead Sciences over PrEPs, controlled by restrictive patents on Truvada and Descovy. Recent allegations also indicate that Gilead Sciences entered into several collusive agreements, delaying competition to maintain the exorbitant prices of Truvada. Gilead’s unethical practices over HIV PrEPs is an open secret and has contributed to the loss of millions of lives unable to afford their high prices. The Right to Health The ongoing COVID-19 pandemic is witnessing similar trends with a disproportionate impact on minorities in the United States. According to data from the CDC, 21.8% and 33.8% of COVID-19 cases were Black and Hispanic individuals, with these groups forming only 13% and 18% of the U.S. population. Furthermore, minorities were less likely to be vaccinated against COVID-19 and 4.7 times more likely to be hospitalized from infection. Evusheld as a PrEP would be beneficial under such circumstances, protecting at-risk patients from contracting the virus. However, it is concerning that AstraZeneca has recently shifted to a ‘for-profit’ model with multiple commercial agreements for vaccine supply, reneging on its earlier ‘no-profit pledge’ on the sale of its vaccine. The company made over $1.1 billion from its vaccine but intends to sustain ‘modest profitability’ to compete with global vaccine manufacturers. With this, the pharmaceutical giant’s intentions with Evusheld as a PrEP become more transparent. A strict patent regime from AstraZeneca could see an unequal distribution of COVID PrEPs, exacerbating the pandemic’s impact on at-risk individuals belonging to disenfranchised groups. This is not the first time pharmaceutical companies have prioritized profit over accessibility during the COVID-19 pandemic. The FDA granted Emergency Use Authorization to Gilead’s antiviral drug Remdesivir to treat COVID-19 in patients requiring hospitalization. The drug was priced at $2340 up to $3120, rendering it completely inaccessible to most residents and causing an acute shortage of supply during critical stages of the pandemic. The U.S. Government must prevent this from happening by upholding the core principles recognized under its international human rights obligations. Although the right to health is not constitutionally recognized, the United States is a signatory to the United Nations Declaration of Human Rights (UNDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 25 of the UNDHR and Article 12 of the ICESCR stipulate that everyone is entitled to enjoy the highest attainable standard of physical and mental health. Furthermore, the ICESCR General Comment No. 14 mandates non-discrimination in healthcare accessibility, stating that ‘health facilities, goods and services have to be accessible to everyone without discrimination.’ It is not uncommon for large pharmaceutical entities to engage in price gouging essential services, depriving minorities and other disenfranchised groups from access to critical medical treatment. AstraZeneca has engaged with price gouging in the past, with poorer countries having to pay several times the price for the Vaxzevria vaccine. This is known as vaccine nationalism, which is described by the World Trade Organization as the prioritization of wealthy nations over poorer nations in vaccine distribution. Unethical and discriminatory practices thus prevent the equitable distribution of the medication to those who require it. It is not outside the realm of possibility that Evusheld will follow a similar trajectory where immunocompromised Black, Hispanic, Asian and Native American patients are deprived of access to PrEPs. The denial of PrEPs accompanied by the implicit racial bias in the health care system will leave several minority groups in a highly vulnerable position. Compulsory Licensing Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) permits the use of intellectual property without the permission of the right holder under specific circumstances. Although member states must make reasonable effort to obtain the authorization of the right-holder, this requirement can be waived during national emergencies. Article 5 of the Doha Declaration grants member states the right to determine what constitutes a national emergency or circumstances of extreme urgency. This is referred to as compulsory licensing where the government has the right to manufacture patented pharmaceuticals at lower prices for the protection of public health. Article 73 of the TRIPS Agreement also permits IPR non-compliance for the protection of a state’s essential security interests. The United States Government could very reasonably take action against a potential monopoly over COVID drugs by exercising its rights under Articles 31 and 73. For example, the Brazilian Parliament amended the Brazilian Patent Statute in early 2021 to include the procedural requirements for compulsory licensing during the pandemic. A framework that sets forth the rules for compulsory licensing during COVID-19 could alleviate the concerns of inaccessibility of COVID PrEPs to marginalized groups by granting an IPR waiver to Evusheld. Conclusion The future of COVID medication remains uncertain. Drawing parallels with the HIV/AIDS epidemic and AstraZeneca’s intentions with Evusheld, a limited portion of the population will receive access to COVID PrEPs at the expense of poorer ethnic and racial minorities. The HIV/AIDS epidemic is a stark reminder of the potential human rights transgressions across the pharmaceutical industry, with the monopolization of Truvada and Descovy as precedent for the United States’ health care obligations under its various international human rights instruments. The regulation of its entry into the market, compulsory government licensing, and an intellectual property waiver are just some ways to prevent the monopolization of Evusheld. Although COVID PrEPs will be an invaluable asset during this health care crisis, AstraZeneca must be held accountable for its actions. The failure to do so could prolong the social ramifications of COVID-19 far beyond what is expected.