MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international law. The views and opinions expressed in these articles are those of the authors only.


 

Emilia Truluck
Vol. 42 Associate Editor
Since the classification of COVID-19 as a global pandemic, the United Nations General Assembly and the World Health Assembly have called for “equitable access to and fair distribution” of all health technologies required to combat the virus.[1] The World Health Organization (WHO) has been leading the global coordination efforts for a future equitable distribution of a COVID-19 vaccine via two complementary multilateral initiatives: COVAX and the COVID-19 Technology Access Pool (C-TAP).[2] COVAX, a program of the Access to COVID-19 Tools (ACT) Accelerator, is a market-based cost-sharing and vaccine development initiative launched on April 24, 2020.[3] It currently has support from 172 countries, multiple foundations, and 16 pharmaceutical companies.[4] C-TAP, a voluntary licensing and patent pooling mechanism, was proposed in March, 2020, by Costa Rica, and was launched by the WHO and thirty other countries on May 29, 2020.[5] So far, only 40 countries have joined the “Solidarity Call to Action” to participate in C-TAP.[6] Though both programs have weaknesses, they are likely the greatest hope for the equitable distribution of a COVID-19 vaccine. Without such multilateral initiatives, countries that cannot afford vaccines for their populations may be compelled to resort to compulsory licensing. The result of

Emeline Kong
Vol. 42 Executive Editor
As COVID-19 continues to be a global threat, each country has taken unique measures to protect the health of its citizens. This variance in response is reflected in international trade policies. Notably, China has implemented testing requirements of meat and seafood imports and suspended trade from processing plants due to positive COVID-19 tests.[1] These measures have been accused of being unsupported by science, leading some Twitter users to joke of China’s xenopescophobia: the fear of foreign fish.[2] In September 2020, Beijing Customs announced that all imported cold-chain food would be disinfected and tested for COVID-19.[3] An announcement from the headquarters of a major Chinese port describes the procedures in more detail. If frozen meat and seafood imports test negative for COVID-19, then the imports receive an “Exit Certificate” and enter the domestic market. If the imports test positive, they are destroyed.[4] China has also issued temporary trade suspensions from processing plants that exported food testing positive for COVID-19. To date, suspensions on trade from different processing plants have affected many countries such as Russia, Norway, Indonesia, Brazil, the United States, and Ecuador.[5] Brazil, among other countries, has criticized China’s measures and has proposed challenging them as

Julian McIntosh
Vol. 42 Associate Editor
Introduction

Artificial Intelligence (AI) has proliferated at a breakneck pace, with the United States and China at the vanguard.[i] AI is often thought of in the context of massive supercomputers.[ii] However, advancement has grown so widely that AI is seeping down to the personal level.[iii] With any world-changing advancement, becoming a technology leader provides the leading country the opportunity to supercharge their economy and determine their path to prosperity.[iv] However, it also creates opportunities to weaponize innovation.[v] With such temptation at the fingertips of every country developing AI technology, it is paramount that a treaty is implemented to regulate further development.[vi]

Why a Treaty is Necessary

China and the United States are the two most powerful economies in the world and are competing for dominance in the AI space.[vii] This has created a perception of an AI arms race.[viii] This perception, however, undersells the long-term potential of AI and oversells the short term impact.[ix] “For the foreseeable future, AI will only incrementally improve existing platforms, unmanned systems such as drones, and battlefield awareness.”[x] Meanwhile, AI research will benefit from cross-silo collaboration. Focusing on a zero-sum game would limit the heights that Artificial Intelligence can reach.[xi]

Though the United States surely

Lorena Balic
Vol. 42 Associate Editor
The Fédération Internationale de Football Association (“FIFA”), the world’s governing soccer body, is notorious for corruption[1] and, increasingly, for exacerbating human rights abuses. Murderers ran FIFA’s 1978 World Cup;[2] slave labor now builds its 2022 World Cup.[3]  One hope for reform? Make FIFA a publicly traded company. The organization is registered as a nonprofit under Switzerland's Civil Code.[4]  Subjecting FIFA to shareholder scrutiny could curtail its complacency for human rights violations.



Of course, an IPO for the sports titan is not now realistic. FIFA suffers no capital shortage that would prompt an issuance of shares. Its 2018 Men’s World Cup generated $5 billion U.S. dollars[5] and the federation reportedly fared so well during the pandemic that it considered using its $2.75 billion U.S. dollars in cash reserves to bail out struggling soccer clubs.[6] Under Swiss law, FIFA also enjoys wide latitude to organize itself on its own terms.[7] Relinquishing this benefit would make little business sense.

Nevertheless, a publicly traded FIFA is worth considering. Scholars have explored the concept of a “FIFA Inc.” to address its corruption,[8] but they have not considered it in the context of FIFA’s acquiescence to human rights violators. Such a thought experiment is

James Moser, Jr.
Vol. 42 Associate Editor
Humanitarian crises that provoke refugee crises also may impact the survivability of the cultures of asylum-seeking groups - particularly where they become a minority group in their new country.[1] More state involvement is necessary to protect and maintain the cultures of these refugee groups.[2] Simply avoiding doing harm to refugee cultures would not be enough -International legal norms need to enforce positive obligations on states accepting refugees to provide aid and support that help maintain the group’s culture. This is especially important since the act of migration itself can precipitate a loss of a group’s cultural identity.[3] While much of refugee law focuses on the obligations that States have to refugees as concerns basic life needs, other instruments of international human rights law suggest that States have obligations in their treatment of refugees based on how the State treats its own citizens. The Convention Relating to the Status of Refugees in particular pinpoints obligations to refugees that go beyond simply permitting them asylum.



The International Human Rights regime imposes positive obligations for protecting the culture of minority refugee groups through family and education rights, especially as regarded through the lens of minority rights.  Most of the

Rachelle Kredentser
Vol. 42 Associate Editor
A common critique of international law and intervention, especially in cases of human rights violations, is that international decisions lack the weight of enforcement. It becomes a question of “who will make us?” or “will this actually do anything?” when an international court imposes judgments or decisions, including interim measures, on a member state. These questions have once again come up as the European Court of Human Rights (ECtHR) grapples with Nagorno-Karabakh, where ethnic tensions have turned to acts of violence and a potential war.[1]



In September 2020, Azerbaijan began attacks seeking to gain territory in the ethnic-Armenian area, breaking a decades-long ceasefire between Armenia and Azerbaijan.[2] In response to these aggressions, Armenia requested the ECtHR impose interim measures including: “to cease the military attacks towards the civilian settlements along the entire line of contact of the armed forces of Armenia and Artsakh; to stop indiscriminate attacks; and to stop targeting civilian population, civilian objects and settlements.”[3] The court granted interim measures, asking “both Azerbaijan and Armenia to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk,

Alec Richards
Vol. 42 Associate Editor
Across the world, honeybees are dying out – and no one knows why.  Colony Collapse Disorder, or CCD, occurs when worker bees in a hive unexpectedly disappear or forever leave the hive, leaving their queen and immobile offspring behind to die.[1]  Its causes have yet to be definitively explained, though certain factors such as neonicotinoid pesticides, GMOs, air pollution, habitat degradation, and invasive species have been identified as possible contributors.[2]  With CCD’s global impact and multitude of cross-border causes,  international law (in particular, international environmental and international trade law), presents an attractive and effective means of mitigating this devastating phenomenon.



Since honeybees occupy a vital role in ecosystems and economies around the world, CCD has caused naturally no shortage of concern.  In North America alone, pollination is fundamental to the production of over 90 commercial crops, accounts for 15-30% of the average American diet, and contributes an estimated 15-30 billion U.S. dollars to agricultural productivity alone.[3]  Globally, 5-8% of the world’s crop production in 2019 was “directly attributable” to pollinators, a figure valued at anywhere between 235 to 577 billion U.S. dollars.[4]

Honey itself is also an important additive or ingredient in many foods such that, in 2016,

Joe Fiorile
Vol. 42 Associate Editor
Data is likely to soon be subjected to protective trade barriers, not unlike those erected to control the flow of tangible goods across borders. This post will first explore the existing international data protection regime (or lack thereof). Next, it will highlight the inadequacies of the current regime, as brought into sharp relief by the recent Schrems data privacy litigation. Then, it will argue that two alternatives to our current state of affairs, namely an international regime and a European-led regime, are unlikely to succeed. Lastly, it will predict that countries will choose to protect or control their own citizens’ data, and in so doing begin an era of data protectionism.



Existing Data Protection Regime

The data protection landscape is a patchwork and is ineffectual. The Organization for Economic Cooperation and Development (OECD) developed in its Guidelines some data privacy provisions.[1] The Guidelines have proven influential, but they are voluntary and did not create any permanent international mechanism to implement them.[2] The Council of Europe (to be distinguished from the European Union) established Convention 108, which is open for ratification to nonmembers.[3] But only 55 countries have ratified the treaty, and the US, China, Brazil, India, and other

Tiffany Chung
Vol. 42 Associate Editor
Explicitly politically targeted anti-corruption enforcement is contrary to American OECD convention obligations. However, in a stunningly political move, the DOJ announced the China Initiative in November 2018, which explicitly targeted Chinese entities and individuals for investigation and prosecution under multiple regulations, including the Foreign Corrupt Practices Act. This initiative followed President Trump’s increasingly aggressive approach to foreign relations in China and reflected similar priorities of “trade fairness” and protecting American “economic prosperity and competitiveness.” [1]



In this post, I evaluate whether the FCPA enforcement is a good foreign policy tool, especially in the United States’ complex relationship with China. I conclude that the FCPA is a bad “stick” because enforcement relies on cooperation with foreign law-enforcement and governments due to the extra-territorial nature of key evidence, witnesses, and defendants. Furthermore, politically targeted anti-corruption enforcement is explicitly contrary to American OECD convention obligations.[2]  Given this, I posit that foreign policy considerations will have an effect on prosecutorial decision-making (decisions to start an investigation), but the difficulty in international legal assistance will lead to the failure to charge due to insufficient evidence. I also examine how retaliatory action from China will further hinder efforts to negotiate either formal or

Christopher Zepf
Vol. 42 Associate Editor
A federal judge ruled in early September, 2020, that former Green Beret Michael Taylor, and his son, Peter Taylor, could be extradited to face criminal proceedings in Japan for their role in the dramatic escape of former Nissan CEO Carlos Ghosn.[1]



Japanese prosecutors accused the Taylors of violating Article 103 of the Japanese Penal Code, “enabling or harboring the escape of a criminal.”[2] Peter Taylor, 27, met with Ghosn at a hotel in Tokyo on December 28, 2019, where they presumably discussed the upcoming operation.[3] Michael Taylor, 59, entered Japan on December 29, 2019, posing as a musician while lugging large suitcases used for storing audio equipment.[4] After rendezvousing with Ghosn at a hotel in Osaka, one of those suitcases came to be occupied by the 66-year-old Lebanese businessman.[5] The suitcases, including the one in which Ghosn was hiding, were loaded onto a private jet at Kansai International Airport without going through security, which was typical for outgoing private jets in Japan at the time.[6] The entire operation was cleverly concealed by the flurry of the New Year’s holiday travel season. After landing in Istanbul, Ghosn boarded a second flight for his native Lebanon, arriving just in

Amanda Ibrahim
Vol. 42 Associate Editor
Your new Instagram post, the Hot 100’s playlist you’re streaming on your device right now as you’re reading this, the T.V. show you’ve been following for the greater part of your life hoping it ends so you can move on to something new, none of these would reach you if there was no copyright. This field of law is plagued by much confusion and disagreement among U.S. courts, and it becomes even more complicated as we step into the international field. However, although international copyright law was originally plagued with the similar confusion and disagreement, a lot of the uncertainty has been somewhat clarified by the Trade Related Aspect of Intellectual Property Rights Agreement, or—so you can use the rest of your brain to remember other details like what’s for dinner—the TRIPS Agreement.



The TRIPS Agreement essentially provided standards that each country had to meet given some types of expectation and continuity—I stress the word “some” in that sentence. Although, now, every artist can be rest assured there is some protection for their work in any member nation of the TRIPS Agreement, there are still contentious issues to be faced when applying nuances of each nation’s law.

Tina Al-khersan
Vol. 42 Associate Editor
Human Rights Abuses in XUAR

Since the mid to late 1900s, the Chinese government has inflicted human rights abuses on the Turkic Muslim community in the Xinjiang Uyghur Autonomous Region (XUAR).[1] These abuses intensified in 2014 when the Chinese government launched the “Strike Hard Against Violent Terrorism Campaign” against ethnic Uyghurs, Kazakhs, and other minorities.[2] Four years after the campaign launched, Human Rights Watch reported on its implications: political education camps. The Chinese government insisted that these camps were “boarding schools,” but corrective measures included tech-enabled mass surveillance, detention without charge, forced conversion, and torture and ill-treatment.[3]



These practices effectively outlawed the practice of Islam and violated fundamental rights like freedom of expression, religion, and privacy, in addition to protection from torture and unfair trials.[4] While the Chinese government has since claimed that all detained individuals have “graduated” from these camps, ethnic minorities maintain that their family members are still arbitrarily detained.[5] To date, Turkic Muslims have found no recourse in international law.

Examples of Applicable International Law

The Chinese government has ratified numerous international conventions that protect individuals from religious discrimination, but these conventions remain underenforced. First, the Chinese government has ratified the UN Convention Against Torture and Other

Matthew Micik
Associate Editor
Climate change presents many challenges for international water law. A central problem is creating treaties that are flexible and durable enough to effectively manage the increasing stress on shared sources of freshwater. One way that states can overcome the deficiencies of international law in this area is to establish cooperative institutions that can take a flexible approach to allocating water in the face of fluctuating availability and scarcity. As climate change accelerates, states must make these joint institutions central to any new bilateral water treaties.



People all across the world rely on transboundary bodies of water to access freshwater.[1] Transboundary bodies of water are defined as “aquifers, and lake and river basins shared by two or more countries.”[2]  While these bodies of water are essential to sustaining life, they are under increasing stress.[3] Climate change is leading to greater scarcity in arid climates; runoff is decreasing, and the risk of drought is increasing.[4] Compounding this stress are demographic changes that create a greater demand for freshwater.[5] The importance of freshwater makes it unsurprising that competing claims for this resource have been identified as potential sources of interstate conflict.[6]

There is potential for conflict between states sharing a transboundary body of

Evan Mulbry
Associate Editor
Any American who has exercised their second amendment right understands the feeling of holding a firearm. It’s something that can only be described as an electric sensation, but this power comes great responsibility. As an instrument of life and death, it should be treated with the utmost respect. On the international stage, arms exports have traditionally been regulated through a series of multilateral agreements. Recently, the United States and China have begun to challenge this system through changes in their arms export policies. This has the potential to upset the international regulatory system with dire consequences, including a slow reversal of conventional arms agreements and an increase in the international flow weapons.



Regulation of Arms Exports

In the international arena, countries have traditionally risen to this responsibility by enacting export controls that focus on the national security and human rights aspects of arms shipments.[1] Export controls are laws and regulations that restrict the movement of goods, technology,[2] or information across international boundaries or to foreign persons according to the regulating country’s priorities. The foundation for much of the international order on export controls rests on multilateral agreements such as the Wassenaar Arrangement, which controls the export of arms and dual-use[3] technologies.[4]

Seve Kale
Associate Editor
At first glance, the modern space race has little in common with the traditional space age. Instead of being limited to a few superpowers, a growing number of nations and private actors are involved.[1] Science and exploration remain important motivating forces, but stakeholders are increasingly setting their sights on commercial activities like resource extraction.[2] Nonetheless, the multilateral treaty framework[3] governing activities in outer space has not evolved – and isn’t likely to do so.[4] Instead, space actors may become increasingly reliant on customary international law (“CIL”) for legal standards governing activity beyond the Earth’s atmosphere. However, defining and evaluating existing CIL presents its own challenges.



The rights and obligations determined by CIL differ in several ways from those formally codified in written treaties. Generally, CIL exists where a general and consistent state practice is accepted as law.[5] While a treaty only binds states that are a party, CIL binds all states, unless they consistently object.[6] In some instances, the mere prospect that an agreement could become CIL may inhibit a state from signing on.[7] CIL is a powerful source of law, but defining or elaborating CIL is an imprecise exercise.

The International Court of Justice itself has rarely stated its

Lauren Cole
Executive Editor
Governments of the world largely do not trust Investor-State Dispute Settlement (ISDS). ISDS is the system by which corporate investors, in a world that is becoming increasingly privatized, gain the right to raise issues for arbitration directly against states without first seeking the aid of their home nation’s government.[1] ISDS provisions are typically inserted into Bilateral Investment Treaties (BITs) between two states,[2] but public outrage at the results from arbitration have states looking to remove ISDS provisions altogether from renegotiated BITs. Recently, Vodafone, a British telecommunications company, was granted a large reward in an ISDS dispute with India, “expos[ing] the serious consequences that the host state can suffer because of the draconian [ISDS] mechanism.”[3] The Indian government is concerned that arbitration matters such as this will encourage government actions in  opposition to international law, but it is also widely believed that such disputes as initiated under ISDS intrude on Indian sovereignty.[4] Similarly, in Australia, the belief is that BITs should have no ISDS provisions included going forward.[5] The US-Mexico-Canada Agreement passed with ISDS provisions mostly stripped.[6] The main benefits from the ISDS are visible now, as the provisions help protect companies economically during times of crisis, but that

Vineet Chandra
Articles Editor
Corporate entities around the world enjoy a great many privileges. They often enjoy limited liability for activities within the scope of their business operations. They frequently enjoy tax benefits not ordinarily available to individuals. In a great number of jurisdictions, they also enjoy the protections of a more sophisticated legal system than individual persons. These privileges have sometimes led to a treatment of corporate entities in political and social culture as more akin to sovereigns in their own right rather than as agents of the activity they engage in.[1]

Perhaps it is from this oddity that the disperse, decentralized treatment of corporate entities in international law also derives; there is no international treaty, convention, conference, or standing organization dedicated to the registration and regulation of legal entities around the world. And so it goes with domestic corporate law as well: there exist around the world entirely separate bodies of law governing entities that look roughly similar to one another, that are owned and controlled by roughly the same sorts of people, and conduct the same sort of businesses.[2] Unlike actual people, who can with time grow accustomed to jet-setting around the world, corporate law does not imagine corporations as

Francis Tom Temprosa & Darwin Simpelo
Articles Editor & Guest Editor
Introduction
This argues that the non-release of vulnerable prisoners in this time of a pandemic constitutes a cruel, inhuman or degrading treatment of punishment, a grave violation of the Torture Convention in international law. With the quick and far-reaching spread of the novel coronavirus or Covid-19, prisoners are among the most vulnerable people in the world. Prisoners face the real danger of Covid-19 while being held in environments that make basic health measures of personal protection and distancing impossible. While the situations of prisons, jails, and other detention centers in each country differs, there could be instances when the danger of being afflicted with the disease is grave and imminent in all carceral States.



Prior to the onset of the Covid-19 pandemic, the overcrowding of jails and prisons was already an enduring problem in developed countries, including the United States, but more so in developing countries. The Philippines is one glaring example.[1] As of 2019, the jail population in the country has exceeded design capacity by 439%. The year before, jails held 136,314 persons deprived of liberty or PDLs even though the ideal capacity was only around 25,268. The most overcrowded jail in

Amin R. Yacoub
Guest Editor
The due diligence standard of Full Protection and Security Obligation (“FPS”) of Bilateral Investment Treaties (“BITs”) remains vague until today. I have argued before - in a post on the Cambridge International Law Journal (CILJ) Blog - that the Ampal Tribunal had failed to define the parameters of the Due Diligence standard.[1] On the other hand, a post published by CILJ Blog counter-argued that the Ampal case was “rightly decided.”[2] It contended that the Tribunal’s award sits well within the existing jurisprudence on FPS especially that the tribunal gave enough weight to the exceptional circumstances that Egypt was facing at the time while reaching its conclusive award.[3]


I do not disagree that the Ampal Tribunal had recognized and cited some important Arbitral Awards such as Pantechiniki in its reasoning.[4] However, I argue that it did not seem to benefit from them. By providing no guidelines to the parameters of the due diligence standard,[5] the Ampal Tribunal had returned to ground zero. This is where the counter CILJ post fails to answer the pivotal question I ask: what are the parameters of the due diligence standard?[6] Put differently, while the Ampal award’s reasoning seems incorrect and inadequate to me,

Brooke Simone
Guest Editor
Many international law scholars purport that treaties are the most effective and binding source of international law.[1] However, the efficacy of multilateral treaties may be exaggerated, as demonstrated by minimal penalties for noncompliance, particularly for strong states, and the United States’ absence from and self-interested interpretation of various treaties.

The promotion of credible commitment is held as an essential benefit of treaties; proponents argue that treaties raise the cost of noncompliance more effectively than informal methods and are unique in showing the seriousness of a party to a commitment.[2] These contentions lose some force after investigating three enforcement mechanisms for treaty breaches, and the lack of negative impacts thereof.



First, while the Vienna Convention on the Law of Treaties (VCLT) Article 60 allows for termination or suspension of a treaty in the event of material breach,[3] the likelihood of that termination occurring is minimal, especially for certain types of treaties. For human rights, nuclear non-proliferation, or environmental treaties, termination would undermine the global stability and norms that the parties entered into the treaty to protect.[4] States’ commitment to the International Covenant on Civil and Political Rights, a key human rights treaty, has not wavered despite numerous breaches, even as recent

Raghav Pandey
Guest Editor
The UN High Commissioner for Human Rights Michelle Bachelet recently undertook the unprecedented decision to file an intervention application at the Supreme Court of India.[1] The court is hearing a series of petitions which challenge the constitutional validity of the Citizenship Amendment Act (CAA).

This instance raises very pertinent issues relating to the nature of functions of an entity in this case a United Nations (UN) intergovernmental body, under the aegis of public international law. It is important in this light to analyse the role, capacity of legal representation at national courts, and functions of the Office of the United Nations High Commissioner for Human Rights (OHCHR).



The OHCHR functions under a mandate, which it has received under the UN General Assembly Resolution 48/141. The mandate under its Section 3 (a) mentions inter alia



“…to respect the sovereignty, territorial integrity and domestic jurisdiction of States….”[2]

Further, under Section 4 (d) of the mandate, it is mentioned:


“To provide, through the Centre for Human Rights of the Secretariat and other appropriate institutions, advisory services and technical and financial assistance, at the request of the State concerned….”[3]


Therefore, the state concerned needs to place a request to the OHCHR, only then can

Divyansh Sharma
Guest Editor
Today, internet censorship and social media blockages have become global concerns as states increasingly adopt these measures, purporting to protect public order by curbing hate speech and misinformation. Countries have repeatedly perceived that some degree of regulation of the internet is necessary. Consider the blockage of LinkedIn in Russia following the company’s failure to abide by the data retention law.[1] While free speech defenders argue that the ban was not motivated by public order concerns,[2] this has not stopped Russia from pressuring other platforms, such as Facebook and Twitter, to abide by the much-criticized law.[3] In April 2019, Sri Lanka also blocked access to several websites, including Facebook, fearing communal hate speech in the wake of a terrorist attack.[4] Other states across the globe are following suit, including India[5] and Germany.[6] Given the alarming rise in internet regulation, it is pertinent to understand the potential remedies available to social media companies as foreign investors under the bilateral investment treaty [‘BIT’] framework.



BITs are bilateral instruments that provide reciprocal guarantees for protection of investors of one contracting state in the territory of other contracting state.[7] While the particular standards vary from treaty to treaty, arbitral tribunals have used precedents to

Prajakta Pradhan
Guest Editor

The International Criminal Court (ICC) symbolizes hope around the world. The ICC, in its current form, was officially established in 1998 to prosecute individuals for only the worst international crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression.[1] It functions independently of the United Nations' International Court of Justice.[2] Calls for a universal judicial body like this had been increasingly abundant since World War I.[3] Precursor court to the ICC includes the Nuremberg Trials in the 1940s and ad hoc courts, which were set up for Yugoslavia war. The Western powers advanced the idea of ICC in the aftermath of the failure of the United Nations to prevent the genocide of 8000 Bosnian Muslims in Srebrenica during the Balkan Wars in 1994-95[4] and the mass murder of 800,000 members of Tutsi tribe in Rwanda.[5] The court was created in the midst of repeated calls to put an end to exceptions for those criminals who engaged in the mass slaughter of civilians or any other abominable acts. [6]



The U.S. is not a party to the Rome Statute and has been highly ambivalent about the idea of the ICC since its inceptionNow, two decades after

Bodhisattwa Majumder & Ankit Malhotra
Guest Editors
There is a battle going on between the southern tip of India and the northernmost tip of Sri Lanka (‘Palk Bay’). It is not a battle for land or people but for fish, which are the lifeblood for the fishermen in these coastal villages of Sri Lanka and India.  In between these two coasts, there is treasure in the form of seafood, due to the rich fishing grounds, blessed by the absence of strong currents and latitudinal biodiversity.[1]



Background facts related to the Palk Bay dispute.

Historically, the coastal fishermen from both sides had an unregulated term with no governing law regarding fishing commercially in the area of Palk Bay. However, during the mid-1970s, the area was demarcated by the signing of maritime boundary agreements[2] of 1974 and 1976 between India and Sri Lanka. This demarcation of ‘Fisheries Line’ vis-à-vis the International Maritime Boundary Line (IMBL) made it illegal for fishermen from either side to cross over into each other's waters to fish.[3] This demarcation was the inception of what would eventually turn into a violent conflict.

In the 1960s, India was facing a financial crisis and in response, the government was looking for new ways to stimulate

Ed Cullen
Vol. 41 Associate Editor
A challenge facing developing countries in joining and participating in the global economy is the effect of cartel and monopoly behavior on economic development. The creation of self-sufficient institutions to address these competition issues in developing countries is of central importance to development. The inefficiencies created by the unchecked perpetuation of anticompetitive practices actively hinder economic development by undercutting competition and stifling incentives to innovate.[1] Competition law is one tool of many which when taken together can create an environment that can foster “economic growth and innovation that leads to greater variety, increased quality, and/or lower price—and makes it more likely that those benefits are widely shared”.[2]



The problem faced by many small developing states is not as easily solved as transplanting competition law from another jurisdiction.[3] Lack of access to adequate resources to support the requisite regulatory authority has stood as a barrier to effective application and enforcement of competition law in developing states. This resource constraint can be overcome by turning to supranational organizations, like the Economic Community of West African States (“ECOWAS”).  By coming together and adopting a joint competition law framework, member states don’t need to shoulder the cost of this endeavor alone.

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