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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.

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 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.

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.

About the authors: Sriya Shubhalaxmi Mishra and Atika Chaturvedi are pursuing B.A. LL.B.(Hons) from the National University of Study and Research in Law Ranchi and are currently in their fourth year of the course. Photo available here. Introduction Many in the international community have been following Myanmar’s difficult political history. When military rule, having lasted 48 years, ended in 2010, many believed that this was the beginning of democracy in Myanmar. However, the military returned in February 2021, overthrowing a democratically elected government and justifying its actions by claiming electoral frauds committed by the winning party, the National League for Democracy (NLD). Many turned to the United Nations expecting resolution, but the UN’s diplomacy had devastating repercussions. Dire Calls for Action Overlooked Barring a few relief measures, the UN failed to take any steps to counter the takeover. The relief programs provided food to “food-insecure villages and vulnerable households,” ensuring water, sanitation and hygiene facilities and inculcating child protection services, were also unsuccessful, as they were constrained by various factors such as increase in prices of necessities like food, fuel, interruptions in payments and cash withdrawal system, etcetera. Furthermore, when the UN special envoy for Myanmar called for a UN Security Council action amidst the rise of violence in the country, the organization remained silent. The UN maintained its silence when the military dismissed Myanmar’s Ambassador to the UN for “betraying the country” after he urged the international community to take the “strongest possible action” to end the coup. While it claimed to not officially recognise the junta as Myanmar’s new government, the UN did not publicly express support for the Ambassador dismissed by the junta. China and Russia Step in The UN has formally condemned the coup, presenting an exceptionally unified stance against it with 119 members expressing support for the condemnation. However, the solution to Myanmar’s continuously worseningsituation, which arguably qualifies as a humanitarian crisis as defined by Article 7 of the Rome Statute, is stymied by political diplomacy. With the non-binding nature of the resolution that did pass, the focus must also be on the world powers who abstained from voting in the resolution: China and Russia. China and Russia, two permanent members of the UN Security Council, possess veto power, and are known for supporting the military, and consequently, the coup in Myanmar. Why then, is the UN, one of the largest international organizations in the world, unable to protect human rights due to political infighting? Although UN experts have called for an “unequivocal condemnation” of the Myanmar Coup, the organization has not yet reached a collective consensus because of differences in stance taken up by the member states. The UN diplomats clearly stated that infliction of sanctions is unlikely as opposition by China and Russia is inevitably expected. The Power of Veto and UN’s Purpose During the General Assembly’s fifth session, the UN’s guiding principle was reiterated to include the maintenance of international peace and security, the removal of threats to peace, and the suppression of acts of aggression. This UN session also considered the limit that may be placed upon the right to veto. The permanent members are expected to express unanimous support on matters related to transgression of state responsibilityand exercise restraint in their powers to use veto whilst the UNSC is intended to protect the global peace. Myanmar’s situation, although it does not include other states, has the potential to give rise to an international crisis as the coup is an aggressive and gross violation of fundamental freedom. As such, the UN Security Council must choose how it will uphold international integrity. The coup is no longer a domestic matter as the matter has escalated to a looming refugee crisis which has been implicating other countries. Can the UN Intervene in Myanmar? Although Article 2(7) of the UN Charter bars intervention within a state’s domestic jurisdiction, internal militarized conflicts have the potential to cause cross-border disruption by spurring an exodus of refugees, or by a domestic party involving or receiving support from other states. The Myanmar coup is a crisis that will reverberate for years to come. It is a major, continuous civil disorder that may become a global concern. This being said, even if ASEAN’s efforts to engage in a meaningful dialogue and UNSC’s condemnation of violation of fundamental freedom, without concord amongst the parent body’s members no decision can be possibly reached. The EU and US have already levied sanctions in the form of freezing of assets, suspension of ties, and redirection of funds. Despite numerous statements denouncing the coup, concrete actions for restoration of democratic order and release of detainees in Myanmar has not yet been dealt with by the UN in its recent sessions. A stringent resolution for an arms embargo can only be realized if the UN manages to garner unanimous support from the global community. However, the organization had to water down its initial resolution draft post objections from some member nations. This clearly points to the upcoming hurdles that the UN is going to face to form that unanimous support. Concluding Note The UN has resorted to Humanitarian Intervention like in the cases of Somalia and Libya. The ‘Responsibility to Protect’ (R2P) doctrine allows the sovereignty to dissolve when the human rights of its citizens are violated. The doctrine invokes a wide range of measures to mitigate and obviate atrocious crimes including diplomatic engagement and other relevant forms of international assistance. However, there persists a misconception that military intervention is done only in the interests of the Western states. Whilst various anti-coup protestors implored for the doctrine of R2P to be employed, it is not quite plausible to uphold it in the case of Myanmar as the State itself is the primary offender and is not willing to look after its own citizens. This is aggravated by the Security Council not being able to have a consensus on the actions required to prevent or halt the atrocity crimes. Hence, at a time when even the Ambassador of Myanmar to the UN, donning an anti-coup perspective and coming in support of the people of the country, is asking for help, the UN should carry out humanitarian intervention in the form of deployment of armed forces by liaising with member nations, and should sever economic and diplomatic relations. The chaotic situation in Myanmar induced by large scale suppression of civilians’ rights also calls for an immediate action from the International Criminal Court (ICC), which is empowered to suo moto launch investigations into member and non-member states. Although Myanmar is not a signatory to the Rome Statute, the ICC’s involvement may be facilitated through Article 12.3 of the Rome Statute which empowers a non-party state to accept the jurisdiction of the ICC by lodging a declaration with the Court. Even though its legitimacy on the international stage is unclear, the NUG made a declaration accepting ICC’s jurisdiction with respect to all international crimes in Myanmar since 2002. The NUG has also claimed to have documented more than 400 serious human rights abuses in the country. This declaration may enable the ICC to investigate not only the present military coup but also past ethnic conflicts in Myanmar. Although the crushing of Myanmar’s nascent democracy has enraged its citizens, who have been facing the brunt of the military since the very first day of the coup, it remains to be seen whether domestic protests will bear any fruit.

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: Sherry Shi (J.D. Candidate, Class of 2024) is a Travaux Contributor. Her interests include securities law, international trade law, and international political economy. Sherry holds B.A. degrees in Government and Economics from The College of William & Mary. Before law school, she interned at The Asia Foundation and Carnegie-Tsinghua Center for Global Policy. She is a native speaker of Mandarin and conversational in Japanese. Photo available here. The Olympic Doping Case An artistic closing ceremony held in Beijing on February 20 marked the end of the 2022 Winter Olympics, but controversies over a doping scandal continued to raise international law concerns. Just one day after Kamila Valieva, a talented 15-year-old figure skater from Russia, landed the first woman quadruple jump in history, a doping record in December put her gold medal for the team game in doubt. After a revelation that Valieva’s blood test on December 25, 2021 returned positive for a prohibited substance, the Russian Anti-Doping Association suspended her from subsequent competitions but then quickly overturned their decision. Despite the appeal from the International Olympic Committee (IOC) and the World Anti-Doping Agency (WADA), two major regulators of the Games, the Court of Arbitration for Sport (CAS) found that “none of this is the fault of the athlete” and allowed the young skater to compete in the following women’s single game. The way that major institutional players dealt with the case failed to meet the expectations of many parties. Due to pending investigation results, the IOC could not award the medal to any athlete if Valieva reached the podium. Although Valieva eventually finished in fourth place, all athletes had to compete without knowing if their opponent was clean or if the competition would be fair. With their silver medal suspended because of the case, United States figure skaters actively advocated for strict anti-doping measures to ensure equity in the Games. They filed an application requesting a medal ceremony for the team competition, which was rejected by CAS. WADA also expressed disappointment toward CAS’s decision to loosen the standard for Valieva. While Russia argued that Valieva unknowingly ingested the substance, which was her grandfather’s medication, many were skeptical of the claim due to Russia’s record of noncompliance with international anti-doping rules. In addition to debates over these factual ambiguities, the case itself revealed many confusions within international sport laws and enforcement mechanisms. The Legal and Institutional Framework International sports law has received relatively less scholarly scrutiny in comparison to other fields of law. However, its established mechanisms of administration and dispute resolution are growing and changing. Regulating the “fundamental human activity” of athletic competition, international sports law and relevant transnational organizations have significant implications on human rights and justice for individuals, while shedding light on the opportunities and limitations of global cooperation. The IOC, which supervises the Olympic Games, stands out as a major nongovernmental player in this area. The IOC collaborates with WADA, which was created by the Lausanne Declaration on Doping in Sport, to ensure fair competitions with a “zero tolerance” policy on doping. WADA initiated the World Anti-Doping Code (Code) in 2004 and has been reviewing and amending the Code in order to adjust to recent developments in the anti-doping effort. To ensure the effectiveness of the Code, which is a non-governmental invention, 191 countries ratified the International Convention against Doping in Sport: a UNESCO treaty that holds countries responsible for aligning their legislative interests with the Code. In 1984, the IOC established CAS as an independent tribunal to provide dispute resolution measures that bind all major international sports organizations. According to Article 13 of the anti-doping Code, CAS is the appeals body adjudicating all international doping related-disputes. Concerns about the Strict Liability Rule The CAS order, which permitted Valieva to compete during the investigation, triggered backlash because of the strict liability tradition of the Code. Article 2 of the Code states that “it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation.” Evidence of unintentional doping, including an athlete’s mental status, their age, and the way they consume a substance may be considered by CAS in sanctioning a violation. Meanwhile, in Article 10, the Code specifies that protected persons, including minors, enjoy special protections in the assessment of their faults, due to “their age or the lack of legal capacity.” In Valieva’s case, CAS agreed with the Russian Anti-Doping Agency that the 15-year-old qualifies for a loosened standard for proving the lack of knowledge as a protected person. The Court decided that Valieva had established at the “reasonable possibility” level that her positive test resulted from drinking water that was contaminated by her grandfather’s heart medication. While there were factual disputes, WADA expressed concern over the court’s lenient interpretation of the Code, arguing that exceptions for the “protected persons” do not extend to mandatory provisional suspensions. WADA insisted that the CAS ruling was a “re-writing of the Code,” which “risks undermining the integrity of sporting competition.” Prior to Valieva’s case, there have been various debates on the reasonableness and scope of the strict liability tradition. At the core of the debates is athletes’ mental state for consuming the prohibited substance. In the 2006 CAS case Mariano Puerta v. International Tennis Federation, the appellant Puerta, a tennis player, unknowingly ingested a prohibited substance through drinking water from the same glass that his wife used for taking medicine. Despite reasons to believe that Puerta did not intentionally use the performance enhancer, the Court applied the Code and charged him with doping. Given this precedent with highly similar facts to Valieva’s case, it is not hard to see that the “protected persons” provision might be the only leeway for Valieva. However, considering various factors outside of athletes’ control, the strict liability rule might end up punishing the innocent in a grossly unjust way. Strict liability in the Code is based on rationales that an athlete’s intent is hard to prove and all doping is inherently harmful for all players involved in a game. Nevertheless, international sport authorities should balance these rationales with the complicated realities of Olympic competition. First, minors like Valieva are especially vulnerable to abusing prohibited substances. Given the power differential between young athletes and their organizational supervisors, minors are more likely to be induced and forced to consume performance enhancers. Their immature cognitive capacity might also prevent them from understanding regulations and discerning the substances that they are taking. In fact, Valieva’s coach has already manifested disturbing attitudes toward the 15-year-old. WADA recognized this concern and initiated investigations on Valieva’s support personnel, but it is unclear how CAS will factor the coach’s potential influence on Valieva into their judgment. The possible forced doping scheme does not only apply to minors. In 2019, former Russian athlete Yuliya Stepanova revealed the extent of Russian doping schemes to the UN Human Rights Committee. According to her revelation, she was forced to take prohibited substances without knowing any adverse health consequences. Given that athletes can be victims of forced abuse, the idea of strict liability might be too harsh and arbitrary. In addition, given that there are flaws in the international mechanism of enforcing anti-doping laws, it seems unfair to shift all legal burdens to the athletes. In its ruling, CAS concluded that “athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively.” According to April Henning, an expert in international doping cases, the rulemaking process of international sport laws fails to include the voices of athletes. Weak domestic governance on the use of prohibited substances could also contribute to failures of the international regulatory system, given the corruption issues underlying state-sponsored doping schemes. Conclusion To conclude, given the systemic flaws in anti-doping governance, it is arguable whether authorities should hold individuals strictly liable for doping without considering important external factors such as pressure from coaches and governments, athletes’ ages and disabilities, and pure accidents. Applying these nuanced considerations will further the prevention of doping without impeding on the rights and futures of young athletes. This will help ensure that the Olympic Games and other sporting competitions will continue to be safe and fair forums for all.

About the author: Julia Wang (J.D. Candidate, Class of 2024) is a contributor to Travaux. Her interests include international trade and development, cultural heritage law, and intellectual property. Julia holds a B.A. in Economics and Art History from Rice University. Before law school, Julia served as a Peace Corps volunteer in North Macedonia and conducted policy research on issues relating to migration, education, and innovation. She speaks French, Mandarin Chinese, and conversational Macedonian. "Ceremony marking the accession to NATO of the Republic of North Macedonia" available here. New Governments, New Approach? With the recent change of governments in North Macedonia and Bulgaria, North Macedonia may finally be able to begin negotiations to become a European Union (EU) member after 17 years of being an EU candidate country. On January 18, Prime Ministers Kiril Petkov and Dimitar Kovachevski met in Skopje to find common ground and establish intergovernmental working groups on the economy, infrastructure, EU integration, history, and culture. North Macedonia has welcomed Bulgaria’s willingness to negotiate as North Macedonia has faced a veto from its neighbor in the EU accession process since 2020. Previous Macedonian Prime Minister Zoran Zaev stepped down in December 2021 partly due to failing to lift the Bulgarian veto, highlighting the importance of the country’s ability to attain membership in international organizations. However, North Macedonia will likely continue to encounter numerous challenges in its attempts to join international organizations like the EU due to continued disputes over recognition of its language and national identity. Despite these debates over self-determination, organizations like the EU should work to bring in states like North Macedonia because other powers, particularly Russia and China, are gaining greater influence over their geographic areas the longer they wait. Contention Over Macedonian Language & Identity International Disputes The United Nations Charter explicitly recognizes the principle of “self-determination of peoples.” The International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights both state that “[a]ll peoples have the right of self-determination.” However, despite the well-established right to self-determination, North Macedonia has repeatedly faced obstacles to joining international organizations due to historical and cultural disputes with other countries. When the country declared independence in 1991, Greece perceived the adoption of the name “Republic of Macedonia” as a threat to its territorial integrity. To exert pressure, Greece closed its consulate in Skopje and imposed a trade embargo on the new country. The 1995 Interim Accord helped ease tensions, and the countries agreed to respect the sovereignty, territorial integrity, and political independence of its neighbor. Furthermore, Greece specifically agreed not to object Macedonian accession to or membership in international organizations. Despite improved relations in the late 1990s, Greece maintained that Macedonia had no claim to Hellenistic history in the use of the term “Macedonia” and continued to seek ways to force Macedonia to change its name. In 2008, Greece vetoed Macedonia’s invitation to join NATO because of the name dispute. Macedonia sued Greece in the International Court of Justice (ICJ), arguing that Greece violated their 1995 agreement by blocking Macedonia’s accession. In retaliation, Greece blocked the launch of Macedonia’s EU accession talks in 2009. In 2011, the ICJ ruled that Greece had breached its obligations under the Interim Accord by vetoing Macedonia’s NATO accession; however, the decision did little to change Greece’s stance. Ultimately, the 2018 Prespa Agreement resolved the longstanding dispute by changing Macedonia’s name to “Republic of North Macedonia,” recognizing the Macedonian language as part of the group of South Slavic languages and distinguishing Macedonian and Hellenistic history and culture. Although the agreement was domestically unpopular in both countries, it paved the way for North Macedonia to become a NATO member in March 2020. Bulgaria’s 2020 veto to North Macedonia’s EU accession again brought a challenge to recognition of the country’s national identity. Unlike Greece, which argued that North Macedonia and Greece have nothing in common, Bulgaria contends that North Macedonia and Bulgaria have everything in common. Bulgaria has long claimed that the Macedonian language is only a Bulgarian dialect and that the inhabitants of Macedonia are ethnically Bulgarian. Meanwhile, North Macedonia accuses Bulgaria of refusing to recognize the Macedonian minority in Bulgaria. While Bulgaria initially supported Macedonia’s efforts to join the EU and NATO, Bulgaria declared that it would not support Macedonia unconditionally for historical and geographical reasons after Greece’s veto at the 2008 NATO summit. In 2012, Bulgaria also got involved in the name dispute by opposing the name “North Macedonia” on the grounds that it could result in territorial claims on the Bulgarian region of Pirin Macedonia. Despite the two countries’ 2017 friendship treaty, Bulgaria now demands that North Macedonia meet three conditions in order to begin EU accession negotiations: naming Bulgarian Macedonians as an equally protected minority in its constitution, representing the “realistic number of Bulgarians” in Macedonia in the recently finished census, and ending anti-Bulgarian rhetoric. Recognition of the asserted 120,000 Bulgarians is particularly contentious because the “minority” is largely made up of Macedonians who say they are Bulgarian in order to get an EU passport. Internal Conflicts These international challenges have also been compounded by domestic ethnic tensions. While its neighbors have challenged the validity of its national identity and language, North Macedonia has also struggled to recognize minority rights within its borders. Following an armed conflict between Albanian groups and Macedonian security forces in 2001, the Ohrid Agreement stipulated that Macedonia would decentralize its government and revise municipality boundaries based on a new census conducted under international supervision. Based on 2002 census data, 36 percent of Macedonians belong to a minority ethnic group, with the largest minority being Albanians who make up 25 percent of the population. The Macedonian constitution provides for certain minority rights like inclusion in official languages only if the community comprises at least 20 percent of the population. Granting rights based on population numbers has made processes like the census politically fraught. The 2011 census was canceled, as both Macedonians and Albanians were concerned about political manipulation that would unfairly lower their numbers. While Albanians have seen increased political power and rights in the past 20 years, any changes in numbers still directly affect their political and social representation. These tensions lingered during the latest 2021 census, the results of which should be released next month. Implications for the Western Balkans The challenges that North Macedonia faces in joining international organizations are echoed in other Western Balkan countries. Delays in EU accession have led to a rise in ethno-nationalism in Bosnia and Herzegovina, Serbia, and Montenegro, despite broad support in the region for EU membership. The continued delay in EU accession has led to a rise in Euroscepticism and a resurgence of nationalist parties like VMRO-DPMNE in North Macedonia. At the 2021 Brdo Summit, the EU declared its commitment to future membership for the Western Balkans but rejected presidency chair Slovenia’s proposed timeline for membership by 2030. This leaves the door open for superpowers like China and Russia to have greater influence in the region. Since 2009, China has already invested over 30 billion euros in infrastructure, energy, and finance projects across the Balkans and particularly in Serbia and Montenegro. It now has a notable share of several countries’ national debt with around 15 percent in Serbia and Bosnia, over 20 percent in North Macedonia, and over 40 percent in Montenegro. Beijing has also increasingly diversified its interactions with Balkan countries through cultural diplomacy and academic cooperation. Russia has asserted its influence in the Balkans as part of its strategy to weaken NATO and the EU. It attempted to derail both Montenegro’s and North Macedonia’s accession to NATO and threatened retaliation if Bosnia were to join NATO. Moscow’s strongest relationship in the region is with Serbia, where it has leveraged long-standing cultural and religious ties to inflame nationalist rhetoric and destabilize Serbia’s neighbors. Russia has also made it clear that recognition of Kosovo’s independence from Serbia will be impossible without its approval. Conclusion Like much of the Western Balkans, North Macedonia has a history of competing domestic and international claims for self-determination. Its dispute with Greece caused an 11-year delay in its accession to NATO, and its current dispute with Bulgaria has stalled EU accession for the foreseeable future, despite the fact that North Macedonia was a regional frontrunner when it applied for EU membership in 2004. Allowing countries to block accession over contested views on the existence of a national identity and language has troubling implications for a region so rife with ethnic tensions. To respect the right of self-determination, as well as mitigate the increasing influence that external powers have in the Balkans, the EU should act quickly to bring in countries who have repeatedly expressed their commitment to joining the union.

About the author: 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 Forbidden City," available here. On June 10, 2021, China’s National People’s Congress Standing Committee passed the Anti-Foreign Sanction Law (AFSL), strengthening Beijing’s authority to take retaliatory measures against foreign companies and nationals implementing sanctions against China. AFSL’s promulgation comes in the context of worsening diplomatic relations between China and Western countries due to trade disputes, human rights issues, overlapping territorial claims, and the race to set up 5G networks. Despite not explicitly targeting the United States, experts believe that AFSL was enacted primarily to shield Chinese government officials, departments, and companies from the long arms of US law and secondary sanctions, especially considering how Washington has imposed more frequent unilateral punishments on Beijing in recent years. The AFSL helps China diversify its toolbox in competing with the major powers, and, more importantly, maintain its assertive international image. Introduction to China’s Anti-Foreign Sanctions Law AFSL Article 4 authorizes relevant Chinese government departments to establish an “Anti-Sanctions List” targeting any individuals or entities “that directly or indirectly participate in the drafting, decision-making, or implementation of . . . discriminatory restrictive measures.” Article 5 broadens the scope of retaliatory targets to spouses, relatives, and co-workers of those deemed responsible for foreign sanctions. Such an approach borrows from the precedent set by the US Department of the Treasury. However, while Washington automatically includes relevant individuals of retaliatory targets on the sanctions list, AFSL grants Beijing certain discretion to selectively include target-related individuals on its list. AFSL Article 6 stipulates three main types of countermeasures: denial of entry into or deportation from China, freezing of assets located in China, and prohibitions or restrictions on relevant transactions, cooperation, and other activities with organizations and individuals within China's territory. These measures directly copy from the US sanctions playbook. Additionally, Article 6 contains a catch-all clause, allowing Beijing to employ other countermeasures it deems necessary. Nonetheless, how China determines the necessity of “other countermeasures” remains unclear. Furthermore, AFSL allows Chinese entities and nationals negatively affected by foreign sanctions to report those restrictions to Beijing and sue sanctioners in the Chinese courts for compensation of damages (Article 12). AFSL’s private rights of action resemble prior rules enacted by China’s Ministry of Commerce (MOFCOM) in January 2021. Both of these measures follow from the European Union’s “blocking statute,” a law designed to eliminate the extraterritorial effects of US legislation. Challenges to AFSL: Legality, Implementation, and Effectiveness The first challenge to AFSL is its legality. Pursuant to Article 2(4) of the UN Charter, all UN Member States shall refrain from “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Furthermore, Chapter VII of the UN Charter grants the UN Security Council (UNSC) the exclusive power to adopt economic sanctions in situations that endanger international peace and security. Therefore, whether unilateral sanction complies with the UN Charter is hotly debated. An important justification is that there is a legitimacy gap between UN and unilateral sanctions: UN sanctions can be imposed by nine out of 15 UNSC members on behalf of 193 UN Member States. Thus, unilateral sanctions enable those who do not want to be “represented” by a few powerful states to implement their own economic countermeasures. However, given China’s role as a permanent UNSC member, such an argument carries less weight. The second obstacle for AFSL comes from its implementation. Before AFSL, there were numerous anti-sanctions laws already in place. Article 7 of the Chinese Foreign Trade Law stipulates that “[f]or any country or region that takes discriminatory banning, restriction, or other acts against . . . China in terms of trade,” Beijing “shall be entitled to adopt . . . corresponding measures against them.” In addition, Article 59 of China’s National Security Law “establishes national security review and oversight management systems and mechanisms” to effectively prevent and mitigate Beijing’s national security risks. Aside from laws, a high degree of similarity can be found between AFSL and some MOFCOM administrative orders such as “Blocking Rules” and “Provisions on the Unreliable Entity List.” Therefore, the relationship between AFSL and other existing legislation still lacks harmony. Furthermore, China’s current anti-foreign sanctions legal scheme has yet to establish a specialized agency for its implementation, which often requires interdepartmental cooperation. In contrast, the US Office of Foreign Asset Control, a component of the US Treasury, administers and enforces economic sanctions against targeted entities and individuals. Third, the previous track record of anti-foreign sanction legislation in other countries calls into question their effectiveness against the economic and political power of the US. Washington’s sanctions are incredibly effective due to the US Dollar (USD)’s status as the most frequently used currency in international transactions. According to an investigation conducted by the International Monetary Fund, 59% of the official foreign exchange reserves are in USD as of Q4 2021. It is obvious that China’s Renminbi will struggle to match USD’s reach in the short term, therefore reducing the impact of China’s counter-sanctions measures. Conclusion AFSL represents China’s ambition to level the playing field with the Western powers, especially the US. After AFSL’s enactment, all sanctions imposed under the law by Beijing were against US government officials, scholars, and activists. In contrast, China has so far refrained from using AFSL against other foreign countries and postponed the promulgation of the AFSL in Hong Kong for the concern of the law’s chiling effect on foreign companies. Therefore, adds a complex twist to the heightened tensions between Washington and Beijing: one that will have profound effects on the global economy for the foreseeable future.

About the authors: Vishesh Gupta and Aashna Shah are fourth-year undergraduate law students from Nirma University in Gujarat, India. Photo by Scott Beale, available here. In recent years, there has been a meteoric rise in publicly listed companies through special purpose acquisition company (SPAC) initial public offerings (IPOs) rather than through traditional IPOs. This popularity is due to the perceived low-risk and low-cost advantages that SPACs offer to investors. However, these benefits are substantially outweighed by underappreciated risks, and a comprehensive risk management framework should be developed to protect investors. An Overview of SPACs A SPAC is a shell company with no operating history. The SPAC’s creators (SPAC sponsors) may purchase 20% of the SPAC’s shares at a steep discount before publicly listing the company through an IPO. Once the SPAC sponsors list the company on the public market, investors can buy shares, and these funds finance the acquisition of an operating company. This acquisition is called a de-SPAC transaction, in which the sponsors decide on a target company, and the shareholders vote to approve or reject the proposed acquisition. Experts have claimed that SPAC IPOs are low-risk investments compared to traditional IPOs. This is primarily due to the redemption right, which allows investors to sell the shares they purchased during the SPAC IPO back to the SPAC and requires the SPAC to accept the sale. The redemption right thus functions as a “money-back guarantee”; if a shareholder is dissatisfied, then they may recoup their investment. Despite these shareholder protections, SPACs present substantial risks to shareholders. A recent study published by Harvard University found that although SPAC shares are valued at $10 at the time of merger, for the median SPAC, only $6.67 per share is backed by cash. This substantially reduces the investment value for shareholders. Additionally, the chairman of the United States Securities Exchange Commission (SEC) stated that claims regarding reduced liability for SPAC participants are overstated and misleading. Risks Associated with SPACs 1. Conflict of Interest A sponsor’s main goal is to enter a de-SPAC transaction with a target company irrespective of whether it is the most profitable option. Sponsors’ profit depends on the completion of a de-SPAC transaction. If a de-SPAC transaction does not materialize, then all shareholder investments are returned and sponsors receive no remuneration. In contrast, shareholders’ interests are best served if the sponsors acquire a lucrative company. These conflicting economic interests give rise to the risks illustrated in the merger between MultiPlan Corp and Churchill Capital Corp III. In this merger, the post-merger company’s share price dipped and the shareholders faced losses, but the SPAC sponsors made millions in profits. Because the sponsors bought their shares pre-IPO at such a steep discount, any post-merger losses fell more heavily on the shareholders who bought shares at face value. The case of Franchi v. MultiPlan Corp. further demonstrates the conflict of interest issue in SPAC listings. The plaintiff claimed that the SPAC sponsors breached their fiduciary duties by not conducting the fairness standard of review for the proposed merger. They prioritized their own interests of completing the proposed business combination rather than the shareholders’ interests of acquiring a profitable firm. To counter such risks, some jurisdictions, such as India and Singapore, have proposed interesting laws. The draft regulations released by the International Financial Services Centre Authority for SPAC listings (IFSCA) mandate a freeze of the sponsors' shares until 180 days after the completion of the deal. Similarly, the Singapore Exchange (SGX) consultation paper proposes a six-month lock-in period. Such a moratorium on share trading would encourage sponsors to choose target companies according to their economic potential and not as short-term investment vehicles. Additionally, recognizing the importance of minimizing conflict of interests, the SEC released CF Disclosure Guidance: Topic No. 11 guidelines. The guidelines suggest that disclosures include any conflicts of interest arising from sponsors’ and investors’ divergent economic interests, including related party transactions, financing terms, evaluation mechanisms for identifying potential targets, and the total ownership interest of the SPAC management. Moreover, conflicts of interest create the risk of price determination. Whereas the market determines the price of an IPO, SPAC sponsors wield sole responsibility in valuing the price of a target company. In the Kwame Amo v. MultiPlan Corp. complaint, plaintiffs alleged that the sponsors breached their fiduciary duty by acquiring the target through an unfair process that resulted in mispricing. Mispricing the transaction harms investors’ interests because it can dilute their investments. The SEC, in the CF Disclosure Guidance: Topic No. 11, noted the importance of disclosing the valuation method for the target company to its shareholders. The UK consultation paper and the IFSCA draft regulations also suggest disclosure of valuation methodology. The consultation paper released by the SGX on SPACs proposes a novel policy requiring the appointment of an independent valuer to value the target company in a de-SPAC transaction. In theory, an independent valuation would give shareholders an unbiased value of the target company, which they can then use to decide whether to approve the transaction. 2. Fraud/Misconduct in Disclosures Dissemination of accurate information by SPAC sponsors is essential for upholding investor protection because of the unique structure of SPACs, which scholars allege to be filled with conflict and misconduct. There is no operating history in terms of profit-loss and revenue-expenditure. Therefore, the investors bet on the sponsors to make profitable decisions. Sponsors, who have a high pecuniary interest in completing the de-SPAC transaction, disseminate every piece of information related to the SPAC and the target company to shareholders. These high pecuniary interests give sponsors sufficient incentive to indulge in misconduct. For instance, in the US, SPAC sponsors provide information to investors through a proxy statement filed in Form S-4. This is a key source of information that assists the shareholders in making decisions regarding the proposed transaction. It includes information about the proposed target company, its audited financial statements from the previous two to three years, forward-looking financial statements post-business combination, and the terms of the acquisition. This gives sponsors an opportunity to window dress the financial statements or conceal relevant information to make the target company look more impressive, luring the investors into approving the merger. Risks of fraud are not mere apprehensions. In the recent merger between Momentus and Stable Road Acquisition Corp., the SEC charged the SPAC for providing misleading statements to its shareholders and for not conducting adequate due diligence despite its claims that it had. In the SEC’s complaint against Momentus and its founder, the SEC chair stated that the merger reflected the inherent risk of misconduct in SPAC transactions. Misconduct by target companies is also a pressing issue, as they also have incentives to window dress their accounts. Target companies can create an illusion of financial stability that gives it an advantage over other prospective target companies. In 2019, a de-SPAC transaction took place between Akazoo and Modern Media Acquisition Corp. Before the merger, Akazoo claimed to be the leading music streaming service in multiple countries. However, a 2020 report claimed that Akazoo had committed fraud by overstating its subscribers, revenue, and profits. The report also revealed that the materials provided by Akazoo for due diligence were misleading. This shows that despite having laws for disclosures, the inherent scope of fraud and misconduct persists in the SPAC structure. Inherent Risks of SPAC Transactions May Outweigh the Redemption Right Multiple studies have claimed that despite the risks to investors in SPAC transactions, the advantages overpower the disadvantages because of the redemption right. However, this claim does not factor in various risks that can disable the benefits of the redemption right. Even if the shareholders ultimately have the option to back out, misleading information in the proxy statement may deceive shareholders into not withdrawing their investment. Additionally, as in the cases of Nikola and Akazoo, the price of post-merger shares declined after fraud was discovered, leading to shareholder losses. In Nikola, the target company made false statements about its product. The fraud was discovered post-merger, resulting in an 80% dip in share prices from their peak. Likewise, in Akazoo, Akazoo’s stock prices plummeted when fraud was discovered, and the post-merger company’s stock price fell below the stock price of the pre-merger SPAC. Proposed Regulations The risks of listing through SPACs are overlooked. Advantages such as low cost and low risk are misleading because investors ultimately bear the costs. The risks of misconduct and fraud in disclosure requirements can reduce the protection provided by the redemption right to the investors. For SPACs to be sustainable investments, it is imperative that countries improve their investor protection regulations. Considering the current need for investor protection, we propose two suggestions: Appoint an independent valuer to value the target company. The valuer shall be appointed through a majority shareholder vote. Further domestic regulations should establish qualification criteria to ensure the independence of the valuer. This will make it more likely that the valuation method is free of manipulation. Appoint an independent advisor who analyzes the proposed business combination and provides their opinion. This is essential for retail investors who do not conduct thorough due diligence on the target company. This independent advisor’s opinion shall assist the investors in their decision and minimize any risks due to conflict of interests.

About the author: Aaditya Dixit is an external contributor to Travaux. "United Nations" by Ashitaka San available here. Introduction A mysterious ailment has recently affected several United States (US) diplomats. Intelligence agencies suspect that this is a targeted attack involving microwave-radiation weapons. Unfortunately, this is only the latest in a series of events that began to unfold in December 2016. Since then, several US spies have experienced similar symptoms, including dizziness, numbness, and a loss of motor control. Appearing first in Cuba, officials have dubbed this phenomenon “Havana Syndrome,” and hypothesized that it is caused by a microwave gun. If these cases of Havana Syndrome are concerted attacks attributable to a State or non-State actor, it is important to determine whether Article 51 of the UN Charter entitles the US to invoke self-defense. This inquiry raises two questions of international law. First, can unconventional weapons perpetrate an “armed attack” as defined by Article 51 of the UN Charter? Second, does the use of microwave-radiation weapons against individuals constitute an armed attack? Defining “Armed Attack” Article 51 of the Charter recognizes States’ “inherent right of individual or collective self-defense” if they are subjected to “an armed attack.”. Although the Charter does not define “armed attack,” the term is widely recognized as more than the mere “use of force.” According to Dapo Akande and Antonios Tzanakopoulos, legal scholars at Oxford University, the distinction between a use of force and an armed attack is the degree or gravity of force employed. The International Court of Justice (ICJ) has made a similar distinction. In its 1986 Nicaragua v. United States of America ruling, the ICJ held that armed attacks are “the most grave forms of the use of force.” The ICJ reiterated this distinction in its 2003 Case Concerning Oil Platforms opinion. Some events are clearly armed attacks. In 1974, the UN General Assembly adopted Resolution 3314, with the Definition of Aggression annexed. The Definition recognizes that “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State” constitutes an act of aggression. In Nicaragua, the ICJ wrote that the Definition reflected “customary international law.” While not all forms of aggression amount to an armed attack (e.g., occupying a country), aggression and armed attacks are closely linked, and the difference between them is often overlooked. Although the resolution identifies other acts which are recognized as armed attacks, they do not articulate a precise definition. Bruno Simma’s The Charter of the United Nations: A Commentary provides a more concrete definition, defining an armed attack as “force used on a relatively large scale” with “sufficient gravity” that leaves a “substantial effect.” While still broad, Simma’s definition provides some identifiable boundaries. Simma asserts that “force” under the Charter only extends to armed force, noting that the Charter’s drafters rejected attempts at including other forms of coercion in the definition of force. Can Electronic Weapons Be Used to Perpetrate an Armed Attack? Although the Charter has a limited definition of force, it contemplates evolving weapons technology and the role of such technology in perpetrating armed attacks. The ICJ confirmed this in its 1996 Legality of the Threat or Use of Nuclear Weapons opinion, noting that the “provisions [of the Charter] do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed.” Further, according to Yoram Dinstein, armed attacks can be perpetrated by weapons that do not use kinetic force. Therefore, electronic weapons could conceivably be used to perpetrate an armed attack. Nonetheless, the act of aggression must fulfill the gravity requirement. For instance, Rule 71 of the Tallinn Manual 2.0 recognizes that a cyber-attack can amount to an armed attack when “an act that seriously injures or kills a number of persons or that causes significant damage to, or destruction of, property would satisfy the scale and effects requirement” of an armed attack. Would the Use of Microwave-Radiation Weapons on Individuals Satisfy the Definition of an Armed Attack? Multiple prior acts of violence demonstrate that an attack on a prominent individual or a small group can also amount to an armed attack. For example, the assassination attempt on George H.W. Bush motivated several States to support the US’s right to invoke Article 51. Subsequently, during the 2006 Israel-Lebanon conflict, the Security Council Debates revealed support for Israel invoking Article 51 after its border patrol unit was attacked. Additionally, scholars recognize that “an armed attack may also include, in certain circumstances, attacks against private citizens abroad.” Although the individual attacks on US diplomats may not be grave enough to justify the invocation of self-defense, a gravity analysis may apply to the sum of the harm rather than to the harm resulting from each attack. Under the accumulation of events doctrine, individual attacks can be aggregated to constitute an armed attack even though they cannot cross the gravity threshold individually. Since the Charter is not a suicide pact, it would be unreasonable to expect States to repeatedly suffer attacks and not respond. Past practices of the US, UK, and Israel support this notion, and the ICJ’s discussion in Oil Platforms suggests that aggregating individual attacks could satisfy the gravity requirement to constitute an armed attack. The US Can Likely Invoke Article 51 The concepts of force and armed attacks have evolved significantly in practice, judicial opinions, and scholarship. The ICJ’s treatment of force and armed attacks shows that these concepts must not be confined by rigid definitions or semantics. The accumulation of events doctrine, combined with precedent showing that cyber attacks can constitute uses of force, suggest that the recent attacks on US diplomats meet the Charter’s definition of an armed attack. Therefore, Article 51 of the Charter may permit the US to initiate a legitimate defensive response of the perpetrator of these attacks, especially if the number of cases continues to rise.

Prajakta Pradhan is a 3rd year Law Student at Dr. Ram Manohar Lohia National Law University in India. Prajakta has a keen interest in Technology and Space Law. Photo by Tori Rector available here. Introduction Over the past five years, governments and private agencies have dramatically increased space activity, leading to myriad instruments and objects being launched into space. Unfortunately, this has resulted in the overcrowding of outer space and accelerated the accumulation of space debris. The Inter-Agency Space Debris Coordination Committee (IADC) issued its Space Debris Mitigation Guidelines in 2002 and defined "space debris" as non-functional artificial objects in space. There are two kinds of space debris: first, debris that ultimately falls back to the Earth, generated either during a launch or while re-entering the Earth's atmosphere; and second, debris which stays in orbit. Both types of space debris are catastrophic, and even though there are several technological advancements aimed at mitigating the problem of space debris, they face several financial and regulatory issues. Space Debris: Formation, Hazardous effects, Liability Conundrum and Mitigation Measures Space is used for exploration, commercial activities, and military and surveillance purposes. In addition, novel technological advancements have made the launch of satellites and other similar space objects more accessible and economical. Furthermore, the launch of private satellites to improve communication and Internet services has further exacerbated the problem. For instance, SpaceX has launched 1000 small satellites as a part of its Starlink mega constellation, and OneWeb has deployed 146 satellites to provide better communication services. Chinese space enterprises recently announced plans to launch 13000 satellites known as the Guowang constellation, to generate satellite-based internet services. A recent study conducted by the University of British Columbia warned that activities of any mega-constellation could result in the occurrence of a tragedy of the commons. Space debris affects both earth’s atmosphere, and space orbit. Hazardous Space Debris re-entering Earth's atmosphere Space debris can be tremendously dangerous for Earth. Debris from space can re-enter Earth's atmosphere without burning up, endangering persons and the environment, and even resulting in nuclear contamination of Earth's surface. In May 2021, a piece of space junk from a Chinese rocket re-entered into Earth's atmosphere and landed in the Indian Ocean. But the possibility that the rocket could land in a populated area gave rise to global concern and led to constant tracking of the junk’s trajectory for days. According to the 1967 Outer Space Treaty and the 1972 Liability Convention, damage caused by the re-entry of a space object is a government-to-government issue. These treaties assert that the launching states are internationally liable for any damage caused by a spacecraft, even if a private company undertook and is responsible for the launch. However, these launching states favour contractual indemnities to be included in private companies' contracts to evade liability for damage caused by debris instead of taking steps to reduce its creation in the first place. The first and only time a state used the Liability Convention was in 1978 when a Soviet satellite crashed into a region of Canada's Northwest Territories. The satellite crash spread radioactive debris over 15,000 square miles across Canada’s Northwest Territories from Great Slave Lake to Baker Lake —the cleanup process cost over CAD$14 million. This is far from the only incident where space debris re-entered Earth. In 1979, Skylab, a U.S. space station, crashed and spread over the Indian Ocean and uninhabited Western Australia. Despite such instances, Canada remains the only country to put the Liability Convention to use. To encourage states to take steps to prevent space debris-re-entry, the Liability Convention should be used more stringently. A rule should also be introduced to prohibit the launching states from evading their liability by favouring the inclusion of contractual indemnities in private companies' contracts. 2. Hazardous Space Debris in Orbit Orbital space debris consists of space launcher remnants, detached components, fragments from explosions or collisions, and fuel and chemical remnants. The risk of collision between these objects is extremely high, and collision can lead to Kessler Syndrome, a chain reaction of space debris fragmentation. If damage occurs in outer space, the Liability Convention merely imposes liability upon the launching state if the damage caused is due to its fault or the fault of persons or companies in its territory. Since no norm forbids leaving space debris in orbit, it is difficult to attach liability to the launching state of an object which later transforms into space debris and creates damage in space. Article IX of the Outer Space Treaty states that the States Parties to the treaty shall conduct exploration in such a way as to avoid their harmful contamination. However, this treaty does not impose a legally binding obligation for the launching states to avoid creating space debris or to actively remove them if they do. Recently, OneWeb and SpaceX satellites evaded an in-orbit collision after coming just 190 feet close to each other. Arbitration to the Rescue Arbitration is a viable option for dispute resolution in many areas of law akin to space. The ITU Convention, the European Space Agency (ESA) Convention, and the U.N. Convention on the Law of the Seas all have provisions for binding arbitration to settle disputes. Furthermore, dispute resolution of outer space issues is not a new idea. The Liability Convention mentions an alternative dispute resolution mechanism for disputes that cannot be resolved diplomatically. A study on the Arbitration of Space-Related Disputes confirms that both state and non-state actors use international arbitration to resolve space-related disputes. One possible method for the resolution of space-related disputes that nations could adopt is inter-state arbitration. In this area, a tailor-made solution is already present for deliberation. The Permanent Court of Arbitration released its special rules for governing space disputes in 2011. These rules include model language for use in arbitration agreements and establish a panel of arbitrators proficient in this area. These special rules also provide for establishing a panel of scientific and technical experts who may be appointed as expert witnesses. Another available method is the tried and tested option of Investor-State Dispute Resolution. The three landmark Investor-State Dispute Settlement (ISDS) cases in the space sector,Devas v. India, Deutsche Telecom v. India, and Eutelsat v. Mexico have proven ISDS to be an efficient mechanism for dispute resolution. For instance, in the case of Devas v. India, the dispute was between three Mauritius-based shareholding companies of Devas Multimedia Private Limited and Antrix, the commercial arm of the Indian space agency. The claims arose from the Indian Government's cancellation of a contract for the claimants' subsidiary to launch two satellites. The Permanent Court of International Arbitration decided in favour of the investor and awarded it a compensation worth $111.30 million. In Avanti Communications v. Ministry of Defence of the Government of Indonesia, the dispute was between Avanti Communications owned satellite and the Indonesian Government, which led to the initiation of arbitration proceedings in 2017. The proceedings resulted in the government paying $20.075 million to the company, and the case was quickly disposed of within ten months. Suggestions for establishing an International Convention on the Settlement of Outer State Disputes (ICSOD Convention) are also being made. In February 2021, the UAE announced the establishment of a “Court of Space,” a tribunal dedicated to outer space dispute resolution. In April 2021, The Dubai International Financial Centre (DIFC) Courts and the Dubai Future Foundation (DFF) announced the formation of an international working group. This group will explore space-related legal nuances and deliver a view on the potential outcomes of space-related disputes. This is a welcome development in light of the fact that the International Court of Air and Space Arbitration (ICASA), created by the Société Française de Droit Aérien et Spatial (Paris) in 1994, is currently the only arbitration institution in the world that deals with arbitrations relating to space-related disputes. However, its existence has remained secretive. This institution has no website, and its arbitration rules are not at all available. Thus, the organization’s secretive nature and the opacity of the arbitration rules hints at the fact that this institution has most probably not been utilised since its establishment. Lastly, the Liability Convention includes an ADR mechanism for disputes that cannot be resolved diplomatically. However, this mechanism needs revision because, according to the current Liability Convention, decisions have binding value only if the parties agree upon it. To overcome this drawback, the ILA Draft Convention on the Settlement of Disputes in Space recommended non-binding as well as binding procedures. In conclusion, the arbitral awards relating to space matters must be considered binding, and ADR mechanisms should apply to private companies due to their growing presence in the space industry. Conclusion Technological advancements have made outer space much more accessible for state and private operators, but international law frameworks have not kept pace, with private companies being left out entirely. Space law and outer space disputes are still in the infancy stages. With time, other issues, such as property rights of space resources, will become important as space technology advances and its applications multiply. These facts highlight the need for a robust arbitration base since most experts, industry respondents, and commercial parties primarily support arbitration for resolving space-related disputes as it is confidential, timely, and it allows for the presence of technical experts. Above all else, the core of peaceful space use and exploration is international cooperation. Hence, now is the right time to rethink the existing dispute resolution framework and plan its development accordingly through a worldwide initiative.