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. 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.
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). These abuses intensified in 2014 when the Chinese government launched the “Strike Hard Against Violent Terrorism Campaign” against ethnic Uyghurs, Kazakhs, and other minorities. 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.
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. 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. 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
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. Transboundary bodies of water are defined as “aquifers, and lake and river basins shared by two or more countries.” While these bodies of water are essential to sustaining life, they are under increasing stress. Climate change is leading to greater scarcity in arid climates; runoff is decreasing, and the risk of drought is increasing. Compounding this stress are demographic changes that create a greater demand for freshwater. The importance of freshwater makes it unsurprising that competing claims for this resource have been identified as potential sources of interstate conflict.
There is potential for conflict between states sharing a transboundary body of
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. Export controls are laws and regulations that restrict the movement of goods, technology, 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 technologies.
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. Science and exploration remain important motivating forces, but stakeholders are increasingly setting their sights on commercial activities like resource extraction. Nonetheless, the multilateral treaty framework governing activities in outer space has not evolved – and isn’t likely to do so. 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. While a treaty only binds states that are a party, CIL binds all states, unless they consistently object. In some instances, the mere prospect that an agreement could become CIL may inhibit a state from signing on. 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
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. ISDS provisions are typically inserted into Bilateral Investment Treaties (BITs) between two states, 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.” 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. Similarly, in Australia, the belief is that BITs should have no ISDS provisions included going forward. The US-Mexico-Canada Agreement passed with ISDS provisions mostly stripped. The main benefits from the ISDS are visible now, as the provisions help protect companies economically during times of crisis, but that
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.
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. 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
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. 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
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. On the other hand, a post published by CILJ Blog counter-argued that the Ampal case was “rightly decided.” 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.
I do not disagree that the Ampal Tribunal had recognized and cited some important Arbitral Awards such as Pantechiniki in its reasoning. However, I argue that it did not seem to benefit from them. By providing no guidelines to the parameters of the due diligence standard, 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? Put differently, while the Ampal award’s reasoning seems incorrect and inadequate to me,
Many international law scholars purport that treaties are the most effective and binding source of international law. 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. 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, 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. 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
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. 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….”
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….”
Therefore, the state concerned needs to place a request to the OHCHR, only then can
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. While free speech defenders argue that the ban was not motivated by public order concerns, this has not stopped Russia from pressuring other platforms, such as Facebook and Twitter, to abide by the much-criticized law. In April 2019, Sri Lanka also blocked access to several websites, including Facebook, fearing communal hate speech in the wake of a terrorist attack. Other states across the globe are following suit, including India and Germany. 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. While the particular standards vary from treaty to treaty, arbitral tribunals have used precedents to
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. It functions independently of the United Nations' International Court of Justice. Calls for a universal judicial body like this had been increasingly abundant since World War I. 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 and the mass murder of 800,000 members of Tutsi tribe in Rwanda. 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. 
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
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.
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 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. 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
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. 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”.
The problem faced by many small developing states is not as easily solved as transplanting competition law from another jurisdiction. 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.
Vol. 41 Associate Editor
On January 24, 2020, in Davos, Switzerland, the European Union, and 16 other WTO Member States declared their intent to establish a multi-party interim appeal arrangement in wake of the current WTO Appellate Body paralysis. This interim appeal arrangement will be based on Article 25 of the WTO Dispute Settlement Understanding (DSU), which provides for alternative arbitration for WTO disputes. According to the parties involved, the interim appeal arrangement will be in place until a reformed Appellate Body becomes fully operational. While this strategy poses certain limitations, it does provide a temporary solution while WTO parties attempt to determine the reforms necessary to restore the Appellate Body. However, critical to this strategy is the WTO parties’ ability to reach a timely consensus on reform.
For approximately two years, the United States has blocked the appointment of new judges to the WTO’s Appellate Body in an attempt to force reform of the WTO’s dispute settlement process. This tactic reached a critical stage on December 10, 2019 when the terms of two of the three remaining Appellate Body members expired and the Appellate Body lost the necessary quorum to hear appeals. As a consequence, members which lose at the
Vol. 41 Associate Editor
Since July 1, 2019, Japan and South Korea have been locked in a bitter trade war, bringing relations to their lowest point in 41 years. Arising out of historical and political tensions, this standoff between the world’s third and twelfth largest economies has destabilized an already fraught region and disrupted major supply chains around the globe.,  Tensions have receded with the new year, but the threat of trade weaponization continues to loom large over East Asia.
The catalyst of this dispute was a pair of decisions by the South Korean Supreme Court in late 2018. In these landmark rulings, South Korea ordered three Japanese steel manufacturers to pay reparations to Korean laborers forced to work in their factories during the 1910-1945 colonization of the peninsula. Failure to provide compensation could be met with court seizure of the company’s assets in South Korea. This dramatic development stemmed from the Court’s reinterpretation of the controversial 1965 Treaty on Basic Relations between Japan and South Korea.
For decades, Japan has read the 1965 treaty to have settled any and all South Korean claims concerning its actions prior to and during WWII. As consideration, Japan provided $500 million USD in
Vol. 41 Associate Editor
No one could have known that a niche international arbitral tribunal headquartered in Lausanne, Switzerland would break social media by deciding against South African athlete Caster Semenya for her naturally elevated testosterone. The decision handed down by the Court of Arbitration for Sport (CAS) in the spring of 2019, Caster Semenya v. International Association of Athletics Federations (IAAF), is just one of the many instances where international tribunals have failed women of color on the international legal stage.
Semenya’s testosterone level is affected by a natural condition known as “hyperandrogenism.” This condition allows her to compete consistently at a high level. However, her success has also led the IAAF to adopt a “differences of sex development” (DSD) regulation in 2011, which requires her to reduce her testosterone levels to a “normal female range” by taking medications for at least six months prior to any competition in order to be eligible for IAAF events. Semenya filed a request for arbitration with CAS, challenging this regulation.
In the arbitral award, CAS determined that Semenya’s natural testosterone level is within the range of a normal adult male rather than female, concluding that her condition grants her a significant advantage over
Vol. 41 Associate Editor
Russian incursion into Ukrainian territory—in the form of the annexation of Crimea and the ongoing conflict between Ukraine and Russia-backed separatists in Donbass—has provided for fertile territory for human rights abuses. Monitors report an uptick in generalized violence against women, as well as instances of torture, forced labor, illegal detentions, and appropriation of property under threat of violence. Victims of these abuses are now seeking justice, both in Ukrainian national forums and in the European Court of Justice (hereinafter “ECtHR”). And while Ukrainian forums have faced their own challenges in litigating cases arising from the conflict—namely a lack of resources and allegations of sham trials and the ECtHR has faced a still thornier dilemma: how should it apply the European Convention on Human Rights (“ECHR”) in the context of ongoing inter-state conflict, where control over land and actors is unclear? And is it possible to hold Russia—whom many blame for the suffering in Donbass and Crimea—responsible for human rights abuses, without resolving the much-larger issue of Russian and Ukrainian sovereignty over disputed territories?
The answer to these questions depends on the ECrHR’s resolution of the interstate (as opposed to individual plaintiff) dispute of Ukraine v. Russia re
Vol. 41 Associate Editor
As the world becomes more globalized and connected, it is especially important to develop laws that will prevent global enterprises from being subject to double taxation. If every state were to tax a portion of a certain company’s profits, the sum of those portions might exceed the total income of the enterprise. This can be an especially serious problem for shipping enterprises—their profits are generally quite modest, and taxation in developing countries can be quite high.
The Problem of Tax Havens for Shipping Companies
Countries have widely agreed to combat double taxation by using residence- and source-based income taxation schemes. Both the United Nations (UN) and the Organization for Economic Cooperation and Development (OECD) model tax treaties recommend that countries give taxing rights of business profits to a company’s state of residence. An exception is made for profits derived from permanent establishment in a contracting state.
This is not an effective way to tax shipping enterprises. A shipping company’s income is said to be earned on the high seas, and not in the various countries in which it operates. The problem with resident- and source-based taxation is that shipping companies can pay virtually no taxes by using the very
Vol. 41 Associate Editor
Sicily, an island in the Mediterranean off the southwestern coast of Italy, is one of the world’s regions most strongly associated with organized crime. As recently as July 2019, officials in the United States and Italy arrested nineteen mafia suspects in an operation called “New Connection.” The operation was successful in part because of the cooperation between the two nations, which is the sort of outcome envisioned by the United Nations Convention against Transnational Organized Crime (“UN-TOC”). While many countries have a long and legendary history with combatting organized crime, the United Nations developed this commission only twenty years ago. Symbolically, it was signed in Palermo, Sicily.
The increasingly transnational nature of organized crime prompted the UN to address the issue in 2000 through the development of the UN-TOC, and while it has facilitated operations such as the one just mentioned, it could benefit from an updated look at its member states’ strategies, particularly as the structure of organized criminal groups changes. “Generally, there is a consensus that organisations [sic] with well-structured hierarchies—the ‘mafia model’—have become an exception and have been replaced by crime which is much more ‘disorganized.’” These non-hierarchical groups are increasingly comprised of “loosely affiliated networks
Vol. 41 Associate Editor
On January 1st, 2020, South Africa significantly changed its refugee laws. However, these changes are inconsistent with international refugee law, specifically the 1951 Refugee Convention, to which South Africa is a party. These amendments to South African refugee law run contrary to the right of an asylum seeker to non-refoulment and to work. Additionally, they add layers of red tape to South African’s asylum system while also subverting the right to human dignity, life, freedom, and security of the person as protected both by the South African Bill of Rights and various international instruments.
The 1988 Refugees Act, the South African legislation prescribing rules and regulations for asylum seekers and refugees, was modeled after the 1951 Refugee Convention. In 2020, South Africa amended this Act in order to restrict access to work, curtail certain liberties, and discourage political activity of refugees and asylum seekers. All this is under the threat of deportation for the refugee or asylum seeker. Specifically, new provisions of the Act withdraw refugee status if the refugee participates in any political activity or campaigns, sets an age limit for dependents of refugees, and creates a committee to determine what field of study or work
Vol. 41 Associate Editor
It is a wave that may be turning. Provisions for the exchange of information are standard in tax treaties because one of the primary purposes of bilateral tax treaties is to facilitate the exchange of information. Since the US is relatively unusual among countries because it insists on taxing the income of its citizens regardless of where they are geographically, the US has comparatively needed more information on its citizens abroad.
For the most part, information has flowed in one direction: from the rest of the world to the US. The combination of the US’s greater incentive to hunt down information and its financial clout means that it has mostly been the US pursuing potential tax evaders in other countries. This asymmetry is reflected when comparing the US’s model tax treaty with that of the Organization for Economic Cooperation and Development (OECD; a group of rich countries) The US version contains information-exchange provisions that are broader in scope than the OECD’s. For example, the US treaty requires a party to allow the other party to take a deposition. These kinds of conditions help ensure the US that the information gathered through these treaties can be used in
Vol. 41 Associate Editor
Investor state dispute settlement (ISDS) is an international legal proceeding whereby individuals and entities that invest in foreign countries can bring suit in international tribunals in order to protect their property interests associated with their foreign investments. The institution has been widely criticized among scholars, civil society organizations and public figures for a wide variety of reasons, not least of which is the institution’s potential for interfering with the legitimate regulatory decisions of states.
In response to some of these criticisms, academics have considered application of the European Court of Human Rights’ (ECtHR) “margin of appreciation” (MoA) doctrine to ISDS decision making,[i] and some ISDS tribunals have begun to adopt the MoA into their decision making. For example, Philip Morris v. Uruguay provides one illustration of the application of the MoA doctrine in the context of ISDS. [ii] However, as Gary Born’s dissent in Uruguay indicates, the appropriateness of that doctrine in the context of arbitration under bilateral and multilateral investment treaties is contested.[iii] While I concur with Born’s contention that the “doctrine [of the MoA] is based upon the specific language of the [European Convention of Human Rights (ECHR)] and its Protocols and… [therefore] is not
Vol. 41 Associate Editor
This is the sixth month of the ongoing series of protests in Hong Kong, and with each passing day they get more and more violent, now involving baton beatings, water cannons, tear gas, petrol bomb attacks, and even gunfire (1)(2).
The protests started in June, when the first protest was triggered by the Hong Kong government’s proposal of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, which would have allowed for criminal suspects in Hong Kong to be extradited to mainland China under certain circumstances (3). Protesters worried that the Bill would give mainland China greater influence over Hong Kong. (4) The Bill was withdrawn in September, but the protests continued, and developed into a cry for full democracy in Hong Kong. (5)
Many countries have heard Hong Kong’s cry, but one country has taken a particular interest in the event because of its history with China regarding Hong Kong – the United Kingdom. July 1 of this year marks the 22nd anniversary of the handover of the former British colony Hong Kong from Britain to China, an agreement stipulated in the Sino-British Joint Declaration in 1984 (6). Speaking ahead of the