Search Results

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: 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 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.

About the author: Nate Van Duzer (J.D. Candidate, Class of 2023) is a Contributor to Travaux. He has worked with local policymakers and elected officials for nearly a decade, first as an aide to a Seattle city councilmember and later with the administration and school board of Seattle Public Schools. He holds a BA in history from Georgetown University and a Master of Global Affairs (International Peace Studies concentration) from the University of Notre Dame. Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples, speaking at COP26. Photo taken by COP26, available here. Last weekend, COP26, the international climate conference in Glasgow, wrapped up with a consensus agreement by 197 nations. Global leaders have hailed a multitude of new agreements coming from the Conference. However, climate activist Greta Thunberg shared the opinion of many in the environmental justice community by labeling the Conference a “PR event” full of “business as usual and blah, blah, blah.” Recent headlines have captured this stark dichotomy in how leaders and activists perceived the results from Glasgow: The New York Times: Negotiators Strike a Climate Deal, but World Remains Far From Limiting Warming Bloomberg Law: Glasgow Climate Deal’s Success Hinges on Pledges Becoming Action The Nation: COP26 Ends With Promises, but Not Nearly Enough Progress This article overviews the history of COP meetings and explores the perspectives of diplomats and environmental justice advocates who attended the Conference. The History of COP COP26 stands for the 26th “conference of parties” in the wake of the 1992 United Nations Framework Convention on Climate Change. Since the early 1990s, the international community has held repeated conferences attempting to make progress on combating human-caused global warming, including those that led to the 1997 Kyoto Protocol, which sets binding emissions targets on industrialized nations. The most notable recent gathering was the 2015 Paris Agreement, a legally binding treaty that entered into force in 2016. Alongside significantly aspirational language, the agreement requires countries to prepare and submit a “nationally determined contribution” to the reduction of greenhouse gas emissions every five years. Many countries updated their submissions in the lead up to this year’s COP26. The Paris Agreement sets a target of limiting global warming to 1.5ºC. A United Nations report from 2021 calculates that, under current conditions, the world is on track for a devastating 2.7º increase. A separate group has determined that, under current national commitments for reductions by 2030, the result would be a 2.4º increase, less than 2.7º but still well above the 1.5º goal. However, without binding commitments or penalties, climate pacts like the Paris Agreement often require more informal enforcement through peer pressure, example-setting, and positive reinforcement. One means of informal enforcement includes litigation, as international climate agreements have also been brought into numerous lawsuits filed in domestic courts. Columbia Law School’s Sabin Center for Climate Change Law maintains an extensive database of current climate change litigation efforts around the world. Progress Made: The Narrative from Global Leaders COP26 organizers point to several areas of the Glasgow Agreement as positive progress, including a heavier focus on adaptation and a recognition that developing countries need much more financial support. The Agreement contained language related to carbon markets that had been long-disputed since the Paris Agreement. The Glasgow text also contains the words “fossil fuels” for the first time in documents emerging from COP conferences, calling for “the phasedown of unabated coal power and phase-out of inefficient fossil fuel subsidies.” Climate hopefuls will also point to numerous side agreements that arose from the Conference. More than 100 countries signed onto an agreement to “halt and reverse forest loss and land degradation by 2030.” Similarly, more than 100 nations concurred on cutting methane emissions by the end of the decade. The United States and China announced new agreement language about how they would begin working more closely together on climate action. India also initiated a new pledge to reach net zero carbon emissions by 2070. Ultimately, Conference president Alok Sharma declared COP26 a renewed starting point for success: “We can now say with credibility that we have kept 1.5º alive. But, its pulse is weak and it will only survive if we keep our promises and translate commitments into rapid action.” Nowhere near Enough: The Narrative from Activists Environmental justice advocates were not particularly impressed, to say the least. One organization called the outcome a “compromise with catastrophe.” In the final days of COP26, civil society participants staged a massive walkout of the Conference and issued a list of demands. The activist COP26 Coalition’s statement in response to the final Glasgow Agreement ends with this summary, “At COP26, the richest got what they came here for, and the poorest leave with nothing.” Indigenous groups have characterized the Conference as “a death sentence.” Skeptics note that most of the promises from COP26 carry few actionable details and concerted action to mitigate climate change still remains voluntary, which means strong steps are unlikely. For example, while a COP26 agreement to halt deforestation received many signatories, some were quick to point out that this pact is not much different from a 2014 declaration, which failed to halt or even slow the destruction of forests in the past seven years. And while India announced a new climate goal early in the Conference, it vigorously lobbied to water down the fossil fuel language in the late stages from “phase-out” to “phasedown.” The disappointing last-minute changes left the COP26 president “deeply sorry” and near tears. In Conclusion At the end of the Conference, UN Secretary-General António Guterres released a statement calling the actions of COP26 “an important step but . . . not enough.” Global leaders have much more work to do to hold themselves and each other accountable to their lofty pledges, and civil society must continue to make climate change an issue of electoral and political salience if the world is to avert the impending catastrophe of unmitigated climate change.

About the author: Sherry Shi (J.D. Candidate, Class of 2024) is a Contributor to Travaux. 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 of refugees outside the razor-wire fence at the Poland-Belarus border by Kancelaria Premiera available here. Stranded in the woods at the border of Poland and Belarus, thousands of migrants are suffering in freezing cold weather without food, water, shelter, or medical treatment. Most of them fled from the war and poverty of the Middle East and Africa and migrated all the way through Belarus to the eastern border of the European Union. Hoping for a better life, they are trying to enter Poland, Lituania, and Latvia to seek asylum in the EU, but have been trapped at the Belarus-Poland border because of a geopolitical standoff between the two countries. While political accusations go back and forth between EU-backed Poland and the authoritarian government of Belarus, a severe humanitarian crisis has been growing for months from the standoff. Border Group, a humanitarian organization that has been monitoring the crisis, said that at least 11 migrants have died since the spring. On November 11, tensions escalated as the Polish news media reported the death of a 14-year-old boy due to the cold weather on the Belarusian side along the border. According to the UN human rights chief, states involved in the migrant crisis could be violating the 1951 Geneva Refugee Convention, which requires nations to provide protections to asylum seekers while they are proceeding with their asylum applications. On the surface, it seems that the Belarusian government is at fault for manufacturing the migration crisis by abetting migrants to cross their border with Poland. However, the deeper concern is the long-lasting conflict between the interests of political parties within the EU and the humanitarian needs of the Middle Eastern refugees. After Europe’s 2015 migration crisis, during which a huge influx of asylum seekers to the EU raised humanitarian and political concerns, Brussels and its member states have been determined to enforce border controls and reduce irregular arrivals. In October 2021, amid the continuing standoff with Belarus, Poland passed a law that allows border guards to reject asylum applications without examinations and expel migrants who illegally cross the border. This decision to push back on refugees is highly politicized rather than purely based on national security concerns. Poland’s ruling Law and Justice Party (PiS), after losing its majority in the country’s Senate, has been toughening its approach on migration as a way to rally nationalist sentiment and strengthen support from the party’s core right-wing voters. The border emergency also diverted people’s attention away from the party’s controversial and disputed abortion ban, which caused the death of a young woman by delaying her abortion. On November 11, Poland’s Independence Day, far-right groups marched in Warsaw to demand strong border protection approaches. The nationalist march has been marked by xenophobia since 2017, when far-right leaders chanted anti-Semitic and white supremacist slogans. The strong nationalist sentiment has been backed by PiS, which sees itself as the defender of Poland’s national identity and conservative values. The ruling party, by depicting the migrants as dangerous criminals, appeals to Polish voters who have long been disappointed by Brussels’s prior decisions to accept refugees, although EU and international law requires the country to do so. The fact that PiS is not held to account by weaker parties in the Polish Parliament also makes the situation tougher. While the government’s approach is popular among the Polish public, Polish opposition parties have yet to find a uniform solution to the migrant crisis. Some left-wing groups have demanded that the government admit the refugees and grant them asylum status, whereas others have been holding back on the issue with more caution. Although some groups have criticized the government’s blatant disregard of the migrants’ human rights, Poland’s state-controlled media has suppressed the opposition with inflammatory rhetoric, describing them as supporters of Alexander Lukashenko, the dictatorial president of Belarus. Warsaw has also banned human rights workers, lawyers, and journalists from accessing the Polish side of the border to cover the migrant situation. The crisis at the Poland-Belarus border receives a high level of attention from the international community. However, global news coverage has mostly centered around the geopolitical dispute between Belarus and Poland, instead of the forces within Warsaw that have shut the door on migrants for the past decade. Although the UN called for states to abide by international refugee law, it has yet to point out specific duties of Poland and Belarus or specific steps that either country should take to enforce international law. The EU, on the other hand, has been dodging the responsibility of its member states and has instead highlighted the responsibility of Belarus. While the Belarusian government is culpable for encouraging, abetting, and weaponizing border crossers, the EU’s migrant crisis long predates this latest episode. Blaming the Belarusian government will not solve the issue of thousands of people fleeing their countries to seek asylum. The EU should directly tackle the migration issue from its core to avoid a future crisis, instead of relying on peripheral states like Poland for border control. Therefore, in addition to ensuring compliance with international refugee law, EU member states should also make long-term efforts to mitigate regional and internal conflicts in the Middle East, so that people do not have to flee and seek asylum in Europe.

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. "The Great Wall of China" by Keith Roper, available here. Land Border Law On October 23, China passed a Land Border Law, marking the first time that China has dedicated a law to address the governance of its land borders with 14 countries. According to its top legislature, the law was necessitated by “new problems and challenges” that China faces on its frontiers. Together with its coast guard and maritime traffic safety laws (both passed earlier this year), Beijing is continuing to use domestic law to legitimize actions it has already taken and to override established norms and international law. Starting January 1, 2022, the law enables the state to combat any act that would undermine its “sovereignty and territorial integrity.” It stipulates that China can close its border due to security threats and allows for public order agencies, as well as the People's Liberation Army, to mobilize and guard the border. It also encourages infrastructure expansion and economic development in support of civilians living in border regions. Furthermore, the law prioritizes negotiating with neighboring countries to “properly resolve disputes and longstanding border issues.” China’s New Problems and Challenges Since the end of WWII, China has participated in more territorial disputes than any other country, though it has largely settled these disputes through bilateral agreements that usually compromise over the land’s sovereignty. However, scholars continue to express concern over China’s willingness to use force over territory. Although any further expansion would certainly have political and diplomatic costs, the timing of China’s new law is curious. China has ramped up infrastructure building in border areas near India, Bhutan, and Afghanistan, and the Land Border Law suggests that Beijing is employing the same lawfare approach it used in the South China Sea to legitimize its territorial expansion. So what are the “new problems and challenges” that gave rise to this law? Extended Territorial Disputes The law comes in the midst of China’s 17-month military standoff with India. The latest dispute over the Line of Actual Control (LAC) has resulted in conflicts and fatalities on both sides. Both India and China have engaged in an “infrastructure arms race” along the border. With the Land Border Law’s emphasis on civilian development, China is justifying its settlement building, infrastructure development, and military occupation along the LAC in an effort to reinforce its territorial claims. According to Professor Brahma Chellaney, China is using this law to give a “stamp of approval” to its assertive and expansionist actions. Additionally, a provision on the “protection and reasonable use” of water resources seems to target India. The Brahmaputra River, an important water supply for India, has its source in Tibet, and China’s recent plans for hydropower development near the LAC have become another source of contention between the two countries. With this provision, China’s government may be considering the possibility of controlling water volume during conflicts with India under the guise of protecting the “stability of transboundary rivers and lakes.” Since the 1962 Sino-Indian War, the two countries have entered into a series of bilateral agreements that aim to deescalate the tensions along the LAC. However, China’s unilateral passage of this new law is yet another challenge to these agreements and further impedes already-slow negotiations over the boundary. Hostility Toward Refugees Although China’s conflict with India is its most obvious focus, the Land Border Law has implications that extend far beyond territorial disputes. Using the provision about safeguarding its “territorial integrity,” China can continue justifying its hostility toward refugees, especially from North Korea and Myanmar. The law specifically prohibits using sound, lighting, or signs, as well as sending materials through air or water, across its borders, which is reminiscent of the 2020 South Korean law that banned activists from sending material critical of the North Korean regime across the border. Despite being a signatory to both the 1951 Refugee Convention and the 1967 Protocol, China routinely circumvents legal obligations to protect refugees by denying them legitimate status, labelling North Korean refugees as “economic migrants” and Burmese refugees as “border residents.” The Chinese government routinely repatriates refugees back to North Korea, where they often face harsh punishments for attempting to defect. In honoring its 1986 bilateral agreement with Pyongyang that outlaws illegal border crossings, Beijing is violating international law by legalizing the forced repatriation of North Korean refugees. The 2021 military coup has exacerbated existing tensions between Myanmar and China and caused renewed concern that Burmese refugees will cross the border into China to escape violence. The Chinese government recently sent away large numbers of Burmese migrant workers who have worked in China for years and are reluctant to return to a country ravaged by civil war. In the last two months, China has also faced multiple charges of encroachment into Myanmar territory because of the fencing and closed-circuit television cameras that it has installed along the border in efforts to prevent any spillover of the fighting. Beijing has consistently ignored urges from the United Nations and Human Rights Watch to change its stance and continues to view any influxes of refugees as a threat to national security. The official enactment of a land border law provides more domestic justification for China’s unlawful treatment of refugees and encroachment into disputed territory under the guise of “protecting national security.” Domestic Politics Above International Law Obligations Traditionally, governments have appealed to international rules and norms to further their own interests in the domestic political arena. International law has been institutionalized in domestic processes in two ways: as resources for domestic actors to use in national discourse or as principles that are later incorporated into domestic laws. By using its own laws to legitimize its violations of international norms, China is flipping the traditional domestic approach to international law. Not only does the Land Border Law enable China to continue its assertive actions over disputed territory, but it also legitimizes its human rights abuses and shirking of legal responsibilities under international conventions.

About the author: Angela Chen (J.D. Candidate, Class of 2024) is a Contributor to Travaux. Her interests center on critical, deconstructive, and decolonial approaches to international law and international relations theories. Angela holds B.A. degrees in Political Science and Philosophy from the University of Chicago, and an M.Sc. degree in International Relations from the London School of Economics and Political Science (LSE). She is a native speaker of Mandarin and proficient in French. "Peacekeeping - UNMISS" available here. Introduction: State Capacity and “Failed States” Max Weber famously posited that the defining characteristic of a state is its ability to claim the “monopoly of the legitimate use of physical force” within a given territory. Following Weber, scholars have tended to appraise the extent to which a state is “successful” or “capable” by assessing the strength of its institutions. For example, the notion “state capacity” denotes the ability of a government to implement policy goals. A state lacking in capacity is defined as a “fragile” or “failed” state; the “collapse of state institutions… paralysis of governance, [and] a breakdown of law and order” often characterize a “failed state.” Failed states occupy a prominent position in international law, as they call for international intervention, including military and humanitarian support. The end-goal of such intervention is to re-establish an effective government. This article aims to examine, problematize, and reconsider the concept of “failed states'' and its place in international law. Drawing on the poststructuralist school of International Relations (IR), this article interrogates the ways in which the notion “failed states” constructs powerful binaries that render certain courses of action imaginable and possible. As discourses are always undergirded by power relations, the stigmatization of certain states as “failure” then risks reproducing existing global power structurations, perpetuating Eurocentrism, neo-colonialism, and neo-imperialism. Finally, this article proposes alternative, pluralistic ways of conceptualizing statehood which pertain to the Marxian concept of uneven and combined development. Poststructuralist IR: The Discursive Construction of “Failed States” The poststructuralist school of IR focuses on the interplay between discourse, power, and subjectivity. In poststructuralism, power relations operate to constitute the subject. Power is relational and permeates all interpersonal interactions and social relations. Inextricably connected to the notion of power is the notion of discourse, as discourses are always embedded in power relations. A discourse is a “system of statements in which each individual statement makes sense,” producing interpretative possibilities by making it impossible to think outside of the discourse. Discourses create subjects, attach meanings to them, and position them vis-à-vis one another; the subjectivity of the self is therefore always defined against the backdrop of the Other(s). There can be no pregiven self existing autonomously in a vacuum. Discourses are as such undergirded by binaries (such as “presence/absence,” or “male/female”), and enable the fathomability and possibility of actions. Through the poststructuralist lens, the discourses on “failed states” imply the existence of “successful states.” The success/failure binary constructs meanings and possibilities for actions, thereby rendering intervention thinkable, possible, and even “natural.” As power relations underwrite discourses that the powerful monopolize, successful states’ status as “successful” or “capable” gives them the legitimate license to intervene. Such discursive constructions render the “failed” states lacking in state capacity as deviant to the normality of international life and compel the international community to take remedial actions. Assumptions about the “ideal” statehood that are ineluctably European/Eurocentric underlie the ideas of “stateness.” Indeed, canonical theories on statehood focus solely on the “Western” experience: Thomas Hobbes’ formulation of the Leviathan as the aggregation of the power of all subjects is not meant to apply to the “[s]avage people of America.” Max Weber owes his conception of the state as an entity monopolizing the use of legitimate force to Hobbes’ non-inclusive formulation. Charles Tilly only surveys the experience of Western European countries in coining the influential axiom that “war makes states, and vice versa.” In monopolizing the proper definition of statehood, the Western experience inadvertently perpetuates hegemony and Eurocentrism with regard to power, knowledge, ideology, and discourse. “Failed States” in International Law The manifestation of such discursive hegemony in international law is readily apparent. Definitions of failed states are amorphous and often negative, as failed states are always defined in opposition to successful states. Failed states thus always exist as shadows, as “dark mirror image[s].” The classic legal definition of statehood is reminiscent of Hobbesian-Weberian-Tillyian legacies, and is found in the Montevideo Convention, which notes: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.” Failed states are therefore characterized by the lack of control over their population, political instability, socioeconomic inequities, and poverty; they are often on the brink of collapsing into civil war and even into complete anarchy. Recent examples of failed states include Somalia, former Yugoslavia, Rwanda, Congo, and Afghanistan. The arbitrary and contingent nature of the distinction between statehood and anarchy aside, what is at issue in the examples of failed states is that they are almost all non-Western, post-colonial, Third World states. The endogeneity problem is apparent here: the international community characterizes these states as “failure” without reflecting on the extent to which their failure was attributable to their colonial history and “peripheral position in the global politico-economic structures.” Indeed, as Immanuel Wallerstein theorizes, in the world-system, natural resources such as raw materials flow from the periphery (developing countries) to the core (developed countries); the market is how the core exploits the periphery, which renders the periphery perpetually peripheral. In directing our attention to the phenomenon of failed states and their remedies, the dominant international intervention discourses obscure the “structural and constitutive” relationship between failed states and successful states, which is a relationship that colonialism, liberalism, and imperialism enabled. The eliding of the inherently constitutive nature between successful and failed states allows successful states to intervene with impunity. Indeed, intervention is often taken as the legitimate and “natural” course of action in the face of failed states. The rationale is that state failure presents challenges for the international community, primarily in terms of humanitarian and security risks. Indeed, state failure is often accompanied by poverty, violence, and refugee flows. Failed states have also often been associated with terrorism and extremism. These challenges call for both short-term and long-term social engineering by other (developed) countries in order to restore the failed states to functioning states. The track record of international intervention, however, is grim and often “too little too late.” State-building efforts often devolve into long-term occupation which then ends up creating the problems such efforts initially sought to resolve. Specters of neo-colonialism and neo-imperialism also loom large as developed countries attempt to impose their preferred institutions, political systems, ideologies, and ways of life onto the failed states. Ways Forward: Recognizing Developmental Multilinearity The stigmatizing label of “failed states” has brought forth more bane than boon. The international community’s fixation with the notion “failed states” could be diverted by appreciating alternative modes of governance and social organization. The extant measures of state capacity betray Eurocentric assumptions of what a state is and how state-making should unfold, informed by the canons of Hobbes, Weber, and Tilly. In Dan Slater and Diana Kim’s study of non-Western states such as the Philippines in the 1940s and 1950s, and Burma from the 1940s onward, they concluded that states’ appetites and practices in centralizing power, controlling population, and monopolizing violence are highly uneven. The Marxian theory of uneven and combined development (U&CD) might serve as a useful heuristic for pluralizing our understanding of statehood. Unevenness refers to developmental variations both within and between societies, as well as the attendant spatial differences between them. Combination refers to the ways in which states’ relations with other developmentally different states determine the internal relations of any given society. Taken together, U&CD suggest that the developmental trajectories of different countries are multilinear. The developmental path of Western states is only one of the many “spatiotemporal vectors” of unevenness and combination, and therefore should not be taken as the infallible yardstick for appraising statehood. Conclusion The theory of U&CD could serve as an antidote to the Eurocentric, neo-colonial, and neo-imperialist assumptions underlying the notion “failed states” as well as the international interventions this notion enables. Indeed, much more is at stake beyond the creation of more chaos and instability in orienting our horizons around the binary of successful/failed states. Nonetheless, although the theory of U&CD offers a way of reclaiming the ontology of non-Western, developing states, it ultimately has its roots in “Western” theory and philosophy (given its Marxian genesis). To truly assert the epistemologies of the non-Western, there needs to be more inclusivity and receptivity in international law to non-Western theorizations of the state (or the absence thereof).

About the author: Rhia Mehta is a contributor to Travaux. She is pursuing her LL.M. degree at Berkeley Law. Photo available here. A triangular portion of the continental shelf extending into the Indian Ocean through the borders of Somalia and Kenya, allegedly a treasure-trove of oil and gas, has been a subject of dispute between the two nations for the past four decades. In 2009, the nations decided to resolve the dispute through negotiations, as enlisted in the Memorandum of Understanding entered into by them. When talks fell through in 2014, Somalia escalated the dispute for resolution before the international forum in the Hague. On October 12, 2021, the International Court of Justice delivered its judgment on the dispute, finally delineating the maritime boundary. The methods used by the International Court for this purpose, also sought to be crystallized as the standard procedure to be applied when determining maritime boundaries in resolving international disputes, favored Somalia’s proposal. Undoubtedly, the judgment was received with great jubilance by Somalia. Additionally, it has also assumed great importance within the political realm of the country, with President Mohamed Abdullahi Farmaajo placing the judgment on his mantle to receive political gain. In contrast, Kenya has accused the ICJ of bias and refused to afford any recognition to the judgment. After participating in the proceedings up until the submission of all written pleadings, Kenya, as late as in 2021, intimated the ICJ of its refusal to make oral arguments. Initially, Kenya attempted to cite the COVID-19 pandemic and its consequent impediments, including poor internet connectivity in Nairobi, as reasons to avoid a virtual hearing. However, when nine months later Kenya notified the United Nations (UN) Secretary-General of its decision to withdraw its declaration under Article 36(2) of the ICJ Statute, it was clear that Kenya (a) anticipated an unfavorable ruling; and (b) had no intention of abiding by it. This assumption was subsequently confirmed by Kenya’s reaction rejecting the judgment in toto. Given Kenya’s reaction, it appears that the finality of the ICJ’s judgment does not determine the end of Somalia’s struggle to enforce its claim over the disputed waters. The ICJ’s judgment may be binding, but it is not enforceable. Somalia will have to seek the UN Security Council’s aid in enforcing the judgment, as per Article 94(2) of the UN Charter. It is also in Somalia’s favor that Kenya has domesticated the Statute of the International Court as well as the UN Charter by adopting them into its Constitution, stating the “general rules of international law” as “the law of Kenya.” However, the availability of the aforementioned legal resorts do not appear to deter Kenya from its active defiance of the judgment. Kenya has publicly vowed to protect its “inherent right” to “its territory” by way of pursuing “all available means.” At this juncture, it is pertinent to recollect that Kenya has only recently upgraded its naval base near the disputed waters to a full military base. Further, it is Kenya’s declared belief that enforcement of the judgment will lead to a hazardous strain in the relation between the two nations. Kenya’s outright refusal to abide by the judgment is further confirmed by the nation’s withdrawal from the ICJ under Article 36(2). Pertinently, in 1965 Kenya had submitted the five circumstances which could attract the ‘compulsory jurisdiction’ of the ICJ; the present case fell squarely within these circumstances. Regardless, Kenya alleges that the ICJ neither had the jurisdiction nor the competence to preside over the resolution of this dispute. The defying nation has even gone as far as attacking the morality and integrity of a presiding Somalian Justice of the ICJ, also an author of the judgment, citing an alleged bias in favor of his nationality. The purpose of this article is not to gauge the merits of Kenya’s actions but to decipher from them the sliding significance and status of the ICJ. Kenya’s actions in the present case evince a nation’s obvious response to contemporaneous ‘fight or flight’ situations. The present is a clear demonstration of nations pledging their allegiance to the concept of global unity and integration by putting themselves under the international community’s scrutiny. However, when its application is put to the test, in contests involving the nations’ personal interests, the nation will often choose its own interests, citing sovereignty, whilst unhesitatingly undermining all its previous textual commitments to international unions and authorities.

About the co-authors: Shreya Tripathi is a fourth-year student at Maharashtra National Law University in Nagpur, India and Rakshit Sehrawat is a fourth year student at Gujarat National Law University in Gandhinagar, India. Photo available here. “You don't have to be an epidemiologist to realize that infectious diseases make their own preferential option for the poor-they afflict them more, and worse.”-Paul Farmer Introduction On March 11, 2021, the UNHCR estimated that 57 state borders were completely shut, and 81 states had restricted cross border movement. In April 2020, an estimated 39% of the world’s population was living in states with borders open only to citizens and residents. These mobility restrictions brought on by Covid-19 have inconvenienced ordinary people, but for refugees, the inability to move between borders has decimated livelihoods. To be considered a refugee, a person must have crossed an international border. This definition is well settled by virtue of Article 1(A) (2) of the Refugee Convention, and is supplemented by the mandatory principle of non-refoulement encapsulated under Article 33(1) of the 1951 Convention. This article affirmatively obligates states not to forcibly return refugees to their countries of origin whilst the risk of persecution persits. Thus, for persons to legally become refugees, mobility is essential. Though individuals and groups escaping persecution have been granted protection by states for millennia, in order to officially be “refugees” instead of “migrants,” such people must meet the UNHCR requirements. A person who fails to qualify as a refugee because they have not crossed an international border may instead be classified as “internally displaced.” There is a marked distinction between the two. The International Committee of the Red Cross, considers refugees to be “people who have crossed an international frontier and are at risk or have been victims of persecution in their country of origin. Internally displaced persons (IDPs), on the other hand, have not crossed an international border but have abandoned their homes for whatever cause.” Thus, it is evident that the two terms are not synonymous and carry a different set of legal consequences. Internally displaced persons are more likely than refugees to become stranded in conflict zones, caught in crossfire, and are at peril of being exploited as pawns, targets, or human shields by belligerent parties. Displaced persons die at far greater rates than the regular population, and they are routinely deprived of proper housing, food, and medical care. Women and children make up the vast majority of internally displaced people, and they are particularly vulnerable to violations of their fundamental rights. Economic Hardship of Refugee: A Humanitarian Crisis One of COVID-19’s most serious ramifications for refugees is its economic consequences. “I can barely make ends meet. Whatever little employment I had by way of part time jobs has ceased.” “Even if I die, no one from my community would have funds to arrange burials for me.” These are just a few of the Rohingya people’s experiences, a group severely affected by the economic crisis. The financial crunch in the aftermath of the pandemic has drastically affected the economic life of refugees. According to a survey by the Norwegian Refugee Council, more than three quarters of the refugee population has been rendered jobless by the pandemic, around 70% of the population is surviving on two square meals per day, and a majority of school-aged children dropped out of school to save money. Furthermore, according to the UNHCR, approximately 74% of households in developing countries housing the majority of the refugee population are meeting half or less than half of their basic needs due to extreme poverty caused by restricted access to traditional labour markets and the collapse of the informal economy. The problem worsens for refugee populations dependent upon daily wage earnings. According to the United Nations’ Food and Agriculture Organization (FAO), refugee households dependent on daily-wage earning are among the groups most vulnerable to losing jobs due to the pandemic because many lack secure employment contracts. The enormous funds earmarked for COVID-19 prevention by international organizations and humanitarian agencies have resulted in money being diverted away from refugees, many of whom had become highly dependent on direct government subsidies. Due to restricted access to economic resources, some refugee communities are on the verge of starvation and malnourishment. Economic hardship on Entrepreneurs Covid-19 containment measures, restrictions on freedom of movement and lockdown moves have sent shock waves through the refugee population engaged in micro, small- and medium-enterprises (MSMEs). Lebanon is one such place where deteriorating economic conditions have ruined the entrepreneurship sector due to limited access to finance, property, and requisite resources in small scale business. Limited Access to Social Protection Schemes In many countries, social protection measures have come as a respite to deteriorating financial conditions amidst the pandemic. However, data suggests that refugees have very limited access to social protection schemes such as sick leave, access to income support, and health insurance. Refugee Laws: Where lies the Fault? The refugee population’s present precarious economic condition raises a question: Does the normative international framework of refugee protection provide remedies for the protection of refugee rights in emergency situations? In an attempt to answer this question, this article looks to various provisions of human rights bodies. Articles 7, 18 and 19 of the 1951 Convention establish three provisions relating to the right to work, right to wage-earning employment, and the right to self-employment. Article 17 of the Convention casts a mandate on the contracting states to provide “sympathetic consideration”,granting all refugees equal treatment with nationals. These provisions are further supplemented by other international instruments, such as Article 23 of UDHR, Article 6 ICESCR and the ICCPR, all of which contain non-discrimination clauses with an attempt to provide “everyone”, including refuges, the right to work, and the free choice of employment without distinction. The Committee on Economic, Social and Cultural Rights urges states to adopt special, targeted measures, including through international cooperation, to protect and mitigate the impact of the pandemic on vulnerable groups such as refugees. Some human rights treaties, such as the CRPD, “call for strengthening protection in times of crisis.” Hence, the International Human Rights framework is sufficient to safeguard the economic rights of refugees in emergency situations. The fault lies not with the normative framework of laws but the approach adopted by States. The States perceive the refugee problem as a political and economic agenda of politicians instead of looking at it from the perspective of a human-crisis approach. For instance: in South Asia refugee populations become targets of minority-religion driven hatred and are denied humanitarian assistance. Another classic example is South Africa, where the refugee protection issue is embroiled with the issues of national security, economic propensity, racial or cultural integrity, and the resistance to refugee protection is increasingly mobilized for political purposes. Thus, the politicization of the refugee phenomenon puts at bay the humanitarian management of this and other crises, thus leading to flagrant human rights abuses. A novel and human rights centric approach is required to deal with the precarious economic condition of refugees in emergency situations Progressive Measures Present A Way Forward 1. A More Inclusive Refugee Definition: The 1951 Convention grants people refugee status on the basis of race, religion, nationality, membership of a particular social group, or for their political opinion. But this definition is restrictive in its scope. As refugee protection is a core humanitarian issue, the definition should include those implicated by natural calamities, epidemics, or human rights abuses, as grounds to afford protection to refugees in a real sense. A lot has changed since 1951, and new displacement contexts call for new approaches to refugee rights. Experts have warned that Climate Change will create the world's biggest refugee crisis with serious economic, political, and social ramifications. Since the Convention’s definition of the term “refugee” does not accommodate a growing population of people who have experienced displacement and loss of livelihood and resources due to climate change, food insecurity and natural disasters, this inclusive definition will broaden the refugee protection by securing their human right of right to live a meaningful life with decent standards of living. 2. Enforcing the Wilton Park Principles: Built on the concept of shared responsibility and multi-stakeholder participation, this framework encompasses five mutually reinforcing principles that aim to enable participation in economic affairs and foster growth by providing impactful and innovative financing. The core principles are: (a)Work through national and local systems; (b) Support host communities and build social cohesion;(c) Enable economic participation and stimulate growth; (d) Provide impactful and innovative financing. These principles focus on two major potential actors for refugee protection: firstly, the State and secondly, Refugees themselves. Devising a parallel functioning of both the national and local bodies, the principles aim to respond better to current needs, be resilient to future crises and ensure sustainability. Furthermore, by recognizing Refugees as a potential human capital rather than merely as a passive recipient of humanitarian aid, the principles aim to bring a novel concept of refugee employment to ensure economic participation and refugee growth. For example, Subsidised Temporary Employment Programme (STEP), an initiative to generate jobs for Syrian refugees and Lebanese workers in Lebanon. 3. Improve Data and Evidence Collection: Often, the data of displaced populations are conflated and skewed which makes global implementation of beneficial measures ineffective. Thus, a detailed and properly documented database could make the universal implementation of refugee protection measures more effective. 4. Enforcing the Global Compact on Refugees (GCR): The Global Compact on Refugees (GCR) is a framework for more predictable and fair responsibility-sharing, recognizing that a long-term solution to refugee crises requires international cooperation. It lays out a roadmap for governments, international organizations, and other stakeholders to follow in order to guarantee that host communities receive the required assistance, and that refugees may live productive lives. It has four-fold objectives: To ease the pressures on host countries; To enhance refugee self-reliance; To expand access to third-country solutions; To support conditions in countries of origin for return in safety and dignity. Built on the edifice of shared responsibility and burden sharing, the GCR provides protection-sensitive arrangements, Age, Gender and Diversity (AGD) approach as well as regular monitoring and accountability steps will help to fill the crucial gap between adoption and implementation of refugee protection measures.