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.
Vol. 40 Associate Editor
The concept of the crime of genocide was developed following World War II by law professor Raphael Lemkin, a Polish Jew who had fled to the United States during the Holocaust. Following World War II and the atrocities of the Holocaust, the German government has paid out more than $50 billion in the form of reparations to the State of Israel and indemnification to Holocaust survivors. The German Finance Ministry estimates that it will pay out almost $20 billion more by the year 2030, when according to government calculations the last survivors will have died.
However, there has been a call for the German government to admit responsibility and pay reparations for another genocide perpetrated during their colonial rule of West South Africa. Often referred to as the “Forgotten Genocide”, an estimated 100,000 Hereros and Nama people died as a result of actions by the German government between 1904 and 1908.  Following an uprising against the harsh conditions of colonial rule by the Herero and Nama tribes, German general, Lothar von Trotha, issued a written order of extermination saying: “Within the German borders, every Herero, with or without a gun, with or without cattle, will be
Vol. 40 Associate Editor
Environmental considerations have become an increasingly important part of international project finance in recent years. Project finance generally involves the financing of long-term infrastructure and industrial projects around the world, which comes with unique environmental challenges that are often entwined with international environmental agreements. However, due to the structure of project financing, the responsibility of managing environmental risks has fallen to financial institutions. This post will discuss the environmental standards that banks impose on project borrowers, and it will suggest that while those standards seem to be effective at ensuring legal environmental compliance, the current model is lacking in transparency and accountability to the public. As a result, people living in the vicinity of projects can worry about their environmental safety. This is illustrated in Argentina v. Uruguay, an International Court of Justice case concerning Argentinian citizens’ fear for the environmental safety of a nearby project, although the project was found by multiple independent reviewing bodies to be completely innocuous.
The key to any successful project is securing financing. This money typically comes in part from the equity that sponsors contribute, but it primarily takes the form of debt from various financing institutions. In evaluating whether to
Vol. 40 Associate Editor
On July 31st, South African President Cyril Ramaphosa announced that he would support amending the South African Constitution to allow for the expropriation of land without compensation.  An important question that this announcement raises is whether South Africa’s international obligations require the country to provide compensation for the private property that it seizes, and if so, to whom?
When Apartheid ended in 1994, 87% of South Africa’s land was owned by white citizens, who in turn made up only 10% of the nation’s total population.  To address this disparity, the new South African government adopted a “willing buyer, willing seller” program. In theory, the government would pay fair market value to any white landowners who were willing to sell some or all of their property, which the government would then lease out to poor black South African farmers.  However in practice this program has largely failed its intended purpose, and as of 2017, roughly 72% of all of agricultural land in South Africa continued to be owned by the nation’s white minority. 
Ramaphosa’s announcement comes after a particularly turbulent period in which wide scale protests, an economic recession, and a massive corruption scandal lifted
Vol. 40 Guest Editor
For weeks now, the world media has been shaken by the news of the murder of Saudi journalist, Jamal Khashoggi. It has been reported that on October 2, 2018, he was murdered after entering the Saudi consulate in Istanbul, Turkey.
While details are lacking, what we know so far is that a crime took place at a consulate with the potential involvement of consulate employees, a place and a group of people that enjoy an array of privileges and immunities according to settled rules of international law.
These sparse facts are enough to raise significant questions. The main issues that arise concern the extent of such consular immunities and the ability to exercise jurisdiction to investigate and prosecute Khashoggi’s murder.
What is the significance of the consulate being the scene of the crime?
The fact that the scene of the crime was a consulate has played a pivotal role in the revelation of events to the global media. Pursuant to Article 31(2) of the Vienna Convention on Consular Relations (VCCR)—a treaty that both Turkey and Saudi Arabia are parties to—consular premises are inviolable. This means that unless there is a disaster (like a fire) that would require “prompt protective action,”
Vol. 40 Associate Editor
President Rodrigo Duterte’s brutal war on drugs in the Philippines has been making headlines since the beginning of his presidency in 2016. The campaign has resulted in the death of thousands, but over the last year and a half, the situation in the Philippines has taken a new role on the international stage: it has become the subject of a preliminary examination by the International Criminal Court.
The ICC’s Preliminary Examination of President Rodrigo Duterte
So far, there is nothing particularly striking about how the Duterte case has proceeded in its initial stages. How the Court moves forward with the case, however, has the potential to define the future of the ICC. It could be pivotal because it is exactly the type of situation the Court was established to address, and the ICC is in dire need of showing that it can be effective.
The first complaint against Duterte was filed by an attorney in April 2017 on behalf of two Filipino men who claim to be his former paid assassins. The allegations include mass murder and crimes against humanity. In February the ICC responded with a formal announcement that it would open a preliminary examination into the situation
Sage Wen and Hening Zhang
Vol. 40 Associate Editors
Article 51 of the U.N. Charter allows all member states to exercise the right to attack a third country if it assaults an allied nation. However, Japan is not currently able to fully exercise this right of collective self-defense because it cannot be reconciled with Article 9 of the Japanese Constitution. Article 9 stipulates that “the Japanese people forever renounce war as a sovereign right of the nation,” and that “land, sea, and air forces, as well as other war potential, will never be maintained.”
But Japan has had a de facto military since the 1950s known as the Self-Defense Forces (“SDF”). Is this legal? Further, should Japan, as a member state of the U.N., be able to exercise self-defense when being attacked, or even collective self-defense when its ally is under attack?
The answer to this question has produced a sharp split among Japanese constitutional scholars. When the Constitution went into effect in 1947, a majority of scholars agreed that it banned any war potential, even for self-defense. However, because of the US–Japan Mutual Defense Assistance Agreement, signed in 1954, Japan was obliged to strengthen its defense capabilities. When the SDF was set up
Vol. 40 Associate Editor
The Road to Basel I and Beyond
In the 1980s, a spike in the number of bank failures in the United States prompted banking regulators to turn their regulatory crosshairs to bank capital requirements. Prior to what became known as the Savings and Loan crisis, banks and bank-like institutions began engaging in riskier and more complex transactions. This increasing complexity coincided with a fall in capital levels across the industry. Capital acts as a cushion for banks to draw upon in the event of a run on their assets: the higher the capital to asset ratio, the greater the protection in the event of a liquidity crisis.
Resolved to address bank failure risk, regulators believed that increasing capital requirements on banks could reduce the likelihood of failure. The solution, however, could not be addressed solely by domestic legislation – an international coordination problem stood in the way of effective reform. Heightened capital requirements require banks to raise more equity to continue lending at the same rate as under the ex-ante capital ratio, increasing the cost of business. This makes harmonization of capital requirements across borders essential: unilaterally tightening capitalization rules would disadvantage the first mover’s financial industry. Investment
Vol. 40 Associate Editor
On October 9, 2018, activists and concerned citizens across the world celebrated The Hague Court of Appeal’s decision to affirm Urgenda v. The Netherlands, the first judgment ever which ordered a state to limit greenhouse gas (GHG) emissions on the basis of tort liability. However, their euphoria was short-lived. Just one day later, the UN Intergovernmental Panel on Climate Change (IPCC) issued its annual report, containing the foreseeable but still ominous warning that only a dozen years remain to limit global climate change to an increase of 1.5°C. Yet even in the wake of this news, Urgenda provides reasons for optimism, especially given the increasing frequency with which groups are resorting to the courts to force states to take more drastic action to mitigate climate change.
In its decision, the Court of Appeal agreed with the District Court’s conclusion in 2015 that the Dutch government had failed to meet its duty of care to the people of the Netherlands to prevent climate change. But unlike the District Court, the Court of Appeal saw little reason to preclude the Urgenda Foundation from directly invoking articles of the European Convention on Human Rights (ECHR). While the District Court had
Vol. 40 Associate Editor
When Yacov and Ocean Cohen’s son was three, he moved from Israel, where he had been born and where he had lived to that point, to the United States with his American citizen mother. His father, an Israeli citizen, stayed in Israel due to a Stay of Exit Order that prevented him from entering the United States. Three years later, Yacov still could not enter the United States, and Ocean filed for divorce. The question then became, where should their son live once the divorce was finalized? In international divorce cases, this question is not as straightforward as it might appear, and the answer may depend on where the case is filed.
International child custody cases are governed by the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”), which the United States implements through the International Child Abduction Remedies Act (“ICARA”). One key determination in the Convention is where the child’s “habitual residence” is. Generally, a child should be kept in (or returned to) their nation of habitual residence. But the Convention fails to define “habitual residence,” leaving the term up to the courts of various nations to interpret and administer. “The term is
Vol. 40 Associate Editor
According to reports from various human rights organizations, the Chinese government is currently propagating human rights abuses against the ethnic Muslim minority in Xinjiang Uygur region of Western China. These abuses include forced indoctrination, restriction of movement, arbitrary detention, and pervasive surveillance. Chinese corporations, Hikvision and Duhua have been implicated in these human rights abuses. The Chinese government implementation of large scale data surveillance has included an unprecedent monitoring of Xinjiang residents via security cameras, video analytics hubs, data analysis centers and police check points.
The complicity of Chinese corporations in abuses against the Uyghur people has been highlighted by members of the US Congressional-Executive Committee on China in a letter to the Secretaries of State and the Treasury denouncing the abuses. The letter accused China of creating “a high-tech police state” and stated that the pervasive monitoring is “a gross violation of privacy and international human rights.” The Committee went on to promote restricting both Hikavision and Duhua’s access to US financial systems based on the purported $1.2 million paid to the two companies in connection with the government crackdown in Western China.
Since at least the Nuremburg trials, private sector actors have been tried and held
Lindsay Bernsen Wardlaw
Vol. 40 Online Content Editor
In March 2018, United States President Donald J. Trump publicly proposed the creation of a new branch of the U.S. armed forces: The Space Force. Yet, the U.S. is a party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the Outer Space Treaty), which restricts parties’ ability to militarize space.
Whether the Outer Space Treaty prohibits a U.S. Space Force depends, in large part, on just what the Space Force is – and on how we interpret the Outer Space Treaty itself.
What is the Space Force?
Vice-President Mike Pence has indicated that the Space Force will be an independent sixth branch of the military. It will be comprised of employees currently spread throughout the U.S. military, including Air Force Space Command. The administration hopes that consolidating these employees and their existing tasks into a single chain of command will reduce duplication of their workloads and help the U.S. government implement a cohesive strategy for U.S. engagement in space. 
Critically, the Space Force will include a new U.S. Space Command, which will be led by a four-star general or flag
Vol. 40 Associate Editor
The “Right to be Forgotten” has its origins in Google Spain, in which the Court of Justice of the European Union ruled that individuals have the right to petition internet search providers to remove personal data from that search engine’s index under certain conditions. The EU’s General Data Protection Regulation (GDPR) reinvented the doctrine, setting out rights to erasure, objection, and rectification of inaccurate or misrepresentative personal data. For many commentators, both the Google Spain case and the GDPR recognize the right to a “dynamic identity” in which individuals enjoy “a right to have one’s own identity, made public through the media, permanently and regularly consistent with reality and hence not only up to date but possibly also protected through the removal of information that is no longer accurate or of public interest.”
Subject to certain exceptions, the GDPR also prohibits the processing of special classes of data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership. When the data processing subject withdraws their consent, they may exercise their “right to be forgotten” and request that the data controller erase their personal data. However, the data processor is not required to erase
Vol. 40 Executive Editor
Copyright laws have protected the intellectual property of writers, composers, and choreographers since at least 1710, but the increasing reliance on the internet in the last twenty years has drastically changed the landscape of media consumption and copyright law. The European Union has attempted to address the new challenges to copyright law in an update to the 2001 Copyright Directive that is likely to be approved when put to plenary vote in January. The updated Copyright Directive was initially proposed in 2016, but has undergone a number of changes. Last month, the EU Parliament voted 438 to 226 to approve amendments that are likely to make the Directive palatable enough to pass the final vote in January.
Controversy over Articles 11 and 13
Debate over the proposed Copyright Directive centers largely around articles 11 and 13. Article 11 grants rights to news agencies “for the digital use of their press publications.” Article 13 obligates service providers to aid copyright holders in identifying and precluding unauthorized use of media. The Article specifies “the use of effective content recognition technologies,” otherwise known as upload filters. Proponents of the legislation include news agencies and members of the music industry. Unsurprisingly, critics
Vol. 40 Associate Editor
The Indonesian currency, the rupiah, has declined precipitously during 2018, due to the strength of the U.S. dollar, Indonesia’s negative trade balance, and broader volatility in emerging market currencies. Because of the rupiah’s decline, the current Indonesian government has implemented protectionist trade policies to improve Indonesia’s trade balance and to protect the economy. Additionally, both major candidates in the April 2019 presidential elections have made economic nationalism and protectionism a major campaign issue. However, Indonesia remains deeply connected to international organizations and the global economy. Its recent moves towards protectionism, driven by its politicians’ rhetoric, are better understood as a temporary shift rather than a structural change to Indonesia’s foreign relations outlook.
2019 Presidential Election and Economic Nationalism
The two main candidates in the April 2019 presidential election are current president Joko Widodo (“Jokowi”) and the same challenger he faced in the 2014 presidential election, former Indonesian general Prabowo Subianto (“Prabowo”). While religion was initially expected to be the election’s most important issue, both candidates have instead made it economic nationalism.
President Jokowi has made his administration’s protectionist actions the centerpiece of his campaign, especially given the recent fears caused by the rupiah’s downturn. On August 10, 2018, when
Vol. 40 Associate Editor
Before the 2016 elections popularized the tagline “Make American Great Again” and the rise of U.S. nationalism that came with it, the Honduran government saw its own rise of nationalism in its drug trafficking policies. Honduras’ anti-trafficking policy directly violates the United Nations Convention against Transnational Organized Crime because it pushes the drug trafficking into Costa Rica. To correct this violation, Honduras must abandon its isolationist approach to fighting the drug trade and work with Costa Rica and other neighbors to develop cross-border police reforms and prevention strategies.
The U.N. Convention against Transnational Organized Crime (U.N.C.T.O.C.) calls for international cooperation in combating criminal activities, such as drug trafficking. It requires states to craft domestic laws that prevent and combat crime that moves across state borders. While drafting and enforcement of these laws are left to state discretion, the convention calls upon ratifying states to not limit themselves to purely national means when combatting criminal activities. The convention’s preamble states: “If crime crosses borders, so must law enforcement.” The convention offers two solutions that could bring cross-border crime to an end. One solution is the creation of joint investigative teams that bring multiple states together to investigate
Vol. 40 Associate Editor
In the midst of the Indian Ocean lies the Chagos Archipelago, a remote group of islands that is both a tropical paradise and a bastion of military might. The islands of the Chagos Archipelago are currently the subject of debate at the ICJ. Specifically, the ICJ recently heard arguments regarding UN General Assembly Resolution 71-292. This resolution requested an advisory opinion as to (1) whether the 1968 decolonization of Mauritius by Britain was lawfully completed and (2) what the international law consequences of continued British administration of the Chagos Islands are, including consequences of Mauritius’ inability to resettle its nationals, especially those of Chagossian origin, on the Chagos Islands. In addition to these two questions posed by the General Assembly, the ICJ’s jurisdiction has come into dispute.
The United Kingdom gained control of Mauritius, including the Chagos Archipelago, from France in 1814. The British administered the Chagos Archipelago as a lesser dependency of Mauritius until November 8, 1965, when the archipelago was detached from the colony of Mauritius. Mauritius argues that this detachment was agreed to under duress as a precondition for Mauritius gaining independence from the British.
Of course, this argument raises the question of why
Vol. 40 Associate Editor
A recent report by Human Rights Watch indicates that the Chinese government is engaging in a violent campaign against Turkic Muslims living in the Xinjiang Uyghur Autonomous Region. The People’s Republic of China (PRC) claims that it is attempting to maintain social stability. This campaign, which started in 2014 under the banner “Strike Hard Campaign against Violent Terrorism,” now includes surveillance, mass detention in re-education camps, torture and other atrocities. The PRC has an extensive history of government-sanctioned violence against religious minorities, most notably the Falun Gong, which the PRC has labelled an “evil cult.” What means of legal recourse do the Uyghurs have?
Outwardly, the Chinese constitution protects freedom of religion. Article 36 states that “[c]itizens of the People’s Republic of China enjoy freedom of religious belief” and that “[n]o State organ […] may compel citizens to believe in, or not to believe in, any religion nor may they discriminate against citizens who believe in, or do not believe in, any religion.” However, the constitution only protects “normal religious activities” (which it fails to define) and these activities cannot “disrupt public order, impair the health of citizens or interfere with the educational system of the State.”
2017-2018 Fulbright Fellow at the University of Michigan Law School
The Court of Justice of the European Union has recently released a preliminary ruling on the free movement of a same-sex couple in the Union. For the first time, it has ruled that the third-country same-sex partner of the applicant (Mr. Coman), enjoys a derivative right of residence in the member state (Romania) of which the EU citizen is a member, upon his return. The right could be granted since the two partners contracted a marriage in another member state of the Union (Belgium.) The Court has adopted to this effect an autonomous definition of the term “spouse,” under Article 2(2)(a) of the citizens’ right directive, that includes same-sex marital couples. The ruling has the practical consequence of precluding Romania, and similarly situated states, from denying right of residence to the third country national on the grounds that same-sex marriage is not legally recognized.
This decision is likely to mark a watershed moment in the acquis (case law) of the Court on same-sex couples’ recognition. On the one hand, the holding is doctrinally coherent with precedents conferring freedom of movement rights upon “static citizens.” The doctrine elaborated in these precedents
Vol. 39 Managing Article Editor
In early June, the Appeals Chamber of the International Criminal Court (“ICC”) issued its judgment in The Prosecutor v. Jean-Pierre Bemba Gombo, reversing the judgment of the Trial Chamber and acquitting Mr. Bemba. Mr. Bemba—the former president and commander-in-chief of the Mouvement de libération du Congo (“MLC”)—had been charged with two counts of crimes against humanity and three counts of war crimes between October 2002 and March 2003 in the Central African Republic (“CAR”). More specifically, the charges alleged that Mr. Bemba, under the doctrine of command responsibility, failed to take all reasonable and necessary measures to prevent and punish MLC troops for committing rape, murder, and pillaging against the civilian population in the CAR.
The shock of the acquittal reverberated through the international criminal law community. For one, many viewed the Appeals Chamber’s acquittal as a disappointment. The tribunal, which aims to ensure that the perpetrators of the most serious crimes do not go unpunished, failed to provide justice to the victims who suffered at the hands of the troops.
Also of concern is the majority’s claim that it evaluated the case in a manner consistent with prior international criminal jurisprudence. In reality, the majority deviated
Vol. 39 Guest Editor
On May 8, 2018, President Donald J. Trump declared that the United States would withdraw from the Joint Comprehensive Plan of Action (“JCPOA”), the international agreement restricting Iran’s nuclear program. The Iran deal set limits on Iran’s nuclear programs in exchange for releasing economic sanctions against Iran. While President Trump made no efforts to hide his disdain for the deal, calling it “the worst deal ever negotiated,” it was only on May 8 that he finally announced the U.S. withdrawal. The withdrawal will re-impose economic sanctions on Iran, but the withdrawal itself is very likely illegal under both treaty and trade law, providing a broader warning against such actions.
JCPOA, commonly known as the Iran nuclear deal, was negotiated by the Obama Administration and came into effect in early 2016. In exchange for Iran implementing its nuclear commitments under JCPOA, the United Nations, the United States, and the European Union removed certain previously imposed economic sanctions.
The United States agreed to lift economic sanctions, including ceasing efforts to reduce Iranian crude oil sales, allowing Iranian banks to reconnect to other global banking systems, and permitting third parties to trade with Iran in the automotive, shipping, insurance, and gold
Layne Smith Vol. 39 Associate Editor
Throughout most of the 19th century and into the first decades of the 20th, China’s interactions with the outside world were less than favorable to China’s interests. Western imperialist powers used, among other things, international law as an instrument to secure territory and legal rights in China, often to China’s detriment. These experiences have helped to shape the modern Chinese approach to international law.
The unequal treaties that China signed with Western Powers, such as the treaties that allowed Western Powers to sell opium in China and indemnified them for any harm done, gave rise to an impression in China that international law was a tool used by powerful nations to maintain power. It was with this idea in mind, and the goal of recovering its sovereignty after a long period of humiliation and subjugation at the hands of Western Powers, that China began to take seriously the development of international law.
Of particular importance in modern China’s approach to international law is sovereignty. Sovereignty has become a core concept in modern China’s approach to international law. Former Premier Zhou Enlai summed this up succinctly, stating that “a basic position in the conduct of China’s foreign affairs
Vol. 39 Associate Editor
Over the last several years, the European Union has emerged as a worldwide leader in renewable energy generation. This is not by accident. Rather, it is the result of concerted effort on the part of the Union and its Member States. Because climate change is an inherently international problem, in which the negative effects of one nation’s activities are shared by the world, meaningful progress (“meaningful progress” being the progress necessary to avoid catastrophe) requires international solutions that are both aggressive and enforceable. This is not a radical proposition. Over thirty years ago, the world responded to the serious threat of ozone depletion by signing the Montreal Protocol; all 197 United Nations member states either accepted or ratified the agreement. Today, the harmful gases depleting atmospheric ozone have all but been phased out and the ozone layer is expected to return to 1980 levels by 2060.
The push toward clean energy in Europe roots back to 1990, when the Intergovernmental Panel on Climate Change released its first summary report that sounded the global alarm on the catastrophic effects of climate change on the planet. The European Council responded modestly, agreeing to stabilize greenhouse gas (GHG) emissions at
Vol. 39 Executive Editor
Rubin et al. v. Islamic Republic of Iran et al. is a recent case about the ability of U.S. nationals to enforce a judgement against parties who would normally be afforded immunity. In dealing with foreign nations, the U.S. aims to respect “the careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable.” Under the Foreign Sovereign Immunities Act of 1976 (FSIA), in general, foreign states are granted immunity from being subject to U.S. jurisdiction, and any property of foreign states that is in the U.S. is granted immunity from “attachment arrest and execution” except under express exception.
In this case, the petitioners currently hold a judgement against the Islamic Republic of Iran for damages resulting from three suicide bombings carried out by Hamas on September 4, 1977. The attack left five people dead and almost two-hundred injured. The petitioners brought suit in the District Court for the District of Columbia as U.S. citizens who were either injured or who had close relatives who were injured in the attack. While foreign states typically enjoy immunity, an exception is provided where the foreign state is a “state sponsor of terrorism,” and the plaintiff
Vol. 39 Associate Editor
Anyone watching the peaceful protests in the Syrian towns of Homs, Aleppo, and others morph into an armed uprising in late 2011 and early 2012 could have seen a storm brewing on the horizon. It was obvious even then that the shear brutality with which Syrian dictator Bashar Al-Assad repressed the uprising—by wantonly and unrepentantly massacring Syrian civilians using barrel bombs and chemical weapons—would force people to leave their homes and desperately seek refuge in distant European capitals. Indeed, seven years on, the war in Syria has become the single-largest driver of the current refugee crisis, the largest since the Second World War.
The influx of refugees from Syria, which peaked in 2015 and 2016 when more than one million people entered the European Union, has profoundly reshaped both the European and the global political landscape. Nationalist, anti-immigrant, anti-refugee parties have surged in France, Germany, Italy, Hungary, Denmark, Austria, the Netherlands, and others. In the United States, Donald Trump, who has claimed that terrorists were using the asylum system to gain entry to the United States, was elected and promptly slashed the statutory cap on refugee admissions in half.
Populist anti-refugee rhetoric has typically centered on three
VOL. 39 Associate Editor
As the United Kingdom (UK) prepares to leave the European Union (EU), a war is raging in Europe over which EU regulations will survive the exit. On the one side of this struggle are those that favor a “hard” Brexit, wherein the UK would devise their own regulatory standards and trade with the EU like any other non-EU-member country under World Trade Organization (WTO) rules. On the other side, those that favor a “soft” Brexit, favor an outcome wherein the UK would retain membership of the EU single market for specific sectors of the economy, according to European Economic Area rules, so long as Britain adopts similar regulations as the EU.
While there has been a notable lack of details to the exit, both the UK and the EU have suggested broad solutions to this disagreement. This article examines two prominent solutions: First, the “Three Baskets” approach, suggested by Theresa May, represents a “soft” Brexit; Second, the Free Trade Agreements represents a “hard” Brexit. This examination will cover the key features of both approaches, as well as the pros and cons of each approach, and examine why it is unlikely that the UK will have the pick