Current Issue: Volume 56, Number 2

Treaty Termination: The United States’ Response to an ICJ Ruling on Iran Sanctions

On Wednesday, October 3, 2018, the International Court of Justice (ICJ) issued an order in response to Iran’s request for the indication of provisional measures in its proceedings against the United States—Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America)—for reinstating sanctions after withdrawing from the Joint Comprehensive Plan of Action (JCPOA). In this ruling, the ICJ ordered the U.S. to halt sanctions on Iran that impede humanitarian needs or civil aviation safety. In response, U.S. Secretary of State Mike Pompeo announced, that same day, that the U.S. is officially terminating the 1955 Treaty of Amity with Iran, which served as the basis for the ICJ’s jurisdiction. The 1955 Treaty of Amity The 1955 U.S.-Iran Treaty of Amity, Economic Relations and Consular Rights (Treaty of Amity) is a pre-Iranian Revolution bilateral treaty that set out to promote diplomatic and economic ties and regulate consular relations between the two states. Although Iran and the U.S. have not had diplomatic ties since 1980, following a crisis situation at the American embassy, the treaty is still considered to be valid under international law. Neither state had previously cited the treaty’s termination conditions, outlined in Clause 3, Article XXIII. Moreover, both Iran and the U.S. have used the treaty as the basis for filing proceedings at the ICJ since 1980; examples of these include: United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran); Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America); and Oil Platforms (Islamic Republic of Iran... read more

The Changing Role of the State in Investor-State Arbitration: a Comparison of Brazil and India’s Proposals

Investor to State Dispute Settlement (“ISDS”) has been subject to extensive criticism in recent years, with opposition stemming from developing and developed states alike.  Some of the main points raised by critics are:  (i) the unpredictability of the interpretation of the standards of protection and the proliferation of conflicting awards; (ii) challenges to public policy; (iii) the system’s restriction of States’ regulatory freedom; and (iv) the lack of transparency. As a consequence of this general opposition, some states, such as Ecuador, Bolivia, and India, have seen the systematic withdrawal from BITs. In addition, other states have traditionally refused to take part in the system.  Brazil, for example, has only one BIT in force at the moment. When addressing ISDS reform, all of these states fall in the group of what scholars have called as the “paradigm shifters.”  In essence, these countries reject the possibility of investors bringing claims directly against the state, and therefore suggest a variety of alternate methods, such as domestic courts, ombudsmen, or state-to-state arbitration. The preponderance of the role of the investor’s state in these proposals has again raised concerns regarding a possible politicization of investment disputes.  Investor-to-state arbitration was created to avoid the political implications of diplomatic protection as protection to investors.  The primary drawbacks of diplomatic protection include the fact that the state of the investor has control over the existence of the process (meaning that the state has the ability to choose whether or not to sue the host state) and that the state has the ability to drop the claim at any moment. Meanwhile, the investor has no decision-making power at... read more

Cyber Warfare and the Laws of War: A Gap in the Law Governing Invisible Warfare

Cyber operations and their destructive capabilities were brought to the attention of the international legal community in the late 1990s. Significantly, in 1999 the US Naval War College became the first institution from which a major international legal conference was convened on cyber warfare and international law. Although most States recognize the cyber threat, its legal implications are not widely understood. This article will analyze the laws of war in the jus ad bellum context (law on the commencement of hostilities) as it applies to Cyber Warfare. It will propose a gap in the current law which I argue means that the current laws of war are inadequate in dealing with the evolution of warfare to the cyber realm. 1. UN Charter’s Prohibition on the Use of Force When analyzing international law on jus ad bellum as it currently pertains to Cyber Warfare, our analysis first turns to the general prohibition on the use of force between States contained in Article 2(4), UN Charter. A persistent debate since the drafting of Article 2(4) of the UN Charter is whether provisions of the Article cover only the use of certain types of force or whether the provisions extend further.[i] Article 2(4) requires that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Analyzing Article 2(4) requires interpretation according to the rules set out in the Vienna Convention on the Law of Treaties 1969 (VCLT). As per Article 31 of the VCLT, all treaty terms... read more
Why Heteronormativity makes our rape laws problematic: The dilemma of the transgender community

Why Heteronormativity makes our rape laws problematic: The dilemma of the transgender community

Internationally, most rape laws are based on the grave and possibly drastic assumption that only women can be raped. The rape law is moulded in a woman-centric way, rather than a victim-centric way. The most striking consequence of this was seen lately in California, where a man faced the reduced sentence of rape to sexual assault, merely because of the inadequacy of the Californian law in recognizing that rape could occur beyond the traditional definition of sexual intercourse as well. This is problematic, as sexual crimes beyond the so-called ‘traditional’ and heteronormative spectrum are rampant today, and the absence of a legal framework to address them leaves their victims helpless. One segment of these victims without redress is the transgender community. Already ostracized from society and facing rampant discrimination in countries all over the world, when members of this community face rape, they also face a law which assumes their absence from society. In a joint statement issued by various UN Agencies Ending violence and discrimination against lesbian, gay, bisexual, transgender and intersex people- A Programmatic Overview, emphasis was laid on the presence of laws in countries which target and accentuate the discrimination faced by the transgender community. Further, the Salzburg Global Seminar on LGBT inclusion also specified the need for more encompassing laws and policy architectures for tackling discrimination.  The Human Rights Watch in its 2018 Report has also pointed out the terrible state of discrimination against sexual minorities. Countries such as Egypt, Indonesia and Iran still engage in acts of flogging and harassment against these communities. The rape laws of several countries are deficient because of their... read more

Redefining Attainment of the Best Interests of the Child in the Digital World

In the offline world, education for children does not aim to solely equip them with information. It endeavors to develop in them an ability to interact with the world wisely and critically, while building resilience and a will to participate with effective contribution. They are taught to be agents of their own lives and the United Nations Convention on the Rights of the Child (UNCRC) confers on them the rights which enable this process of development. However, the UNCRC was adopted as early as 1989, and the children of today are growing up in an increasingly digital environment. This brings to light the need for the recognition of rights online as well as offline, in order to allow children to not merely be users but responsible citizens of the virtual world. This essentially means that the Articles of the Convention require an extension in their scope, and expansive interpretation in national policies, to fulfill the requirement of the ‘best interests of the child’ being the primary consideration guiding action. Article 3 of the UNCRC sets out the principle of the best interests of the child, which requires relevant authorities to (i) assess and represent rights and interests in nexus with actions and decisions which affect their well being, (ii)consider the views and take account of the evolving capacities of the child and (iii)promote measures to train and support those responsible for the well-being of the child. In doing so, the UNCRC echoes the ‘paramount consideration’ threshold in the enacting of laws, as laid down by the Declaration on the Rights of the Child, 1959. Legal instruments specific to children... read more