Category: Human Rights

“What about Me?”: How Upholding Non-Refoulement Principles Amidst Turbulent Pakistani-Afghani Relations Paves the Way for a More Peaceful Future

Ila Prabhuram

Legal Background

The rights of Afghani refugees in Pakistan are being infringed upon and violated, exacerbating tensions and ongoing ethnic conflicts in the country. On October 3, 2023, Pakistan’s government announced a significant enforcement effort targeting individuals residing in the country without proper documentation. The government indicated its intention to deport these individuals, which has caused concern among undocumented foreigners, including an estimated 1.7 million Afghan nationals. Pakistan’s Constitution does not explicitly include domestic asylum laws and procedures, but this lack of procedural protection does not absolve the state of its obligations to uphold the principle of non-refoulement under international human rights and customary law– which guarantees that no individual person should be returned to a country that has dangerous conditions in which the person would face torture, cruel or degrading treatment or punishment, or other irreparable harm, as Pakistan is in consistent collaboration with the United Nations’ member countries to ensure protection for those seeking safety in the country. Pakistan is a state party of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which furthers the necessity of the obligatory implementation of non-refoulement principles. Civic nationalism, which is where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, should serve as the basis for the enactment of laws centered around migrants, rather than the divisive notion of ethnic nationalism exemplified in the forced deportations of Afghan refugees and migrants.

Pakistan’s interim Interior Minister, Sarfraz Bugti, clarified that this crackdown is not specific to Afghans and will apply to migrants of all nationalities, even though the majority of migrants in Pakistan are of Afghan origin. The Pakistani government alleges that Taliban-affiliated militants, who traverse the shared 2,611-kilometer border between the two countries, have been responsible for attacks in Pakistan and often find refuge in Afghanistan. This move comes at a time of strained relations between Pakistan and its neighboring Taliban-led Afghanistan. These tensions stem from an ongoing dispute over what is known as the Durand Line, an international border inherited by Pakistan after the country gained its independence in 1947. The Afghani government has always refused to accept this agreement, attempting to seize Pakistan’s western provinces of Balochistan and Khyber Pakhtunkhwa over the last few decades. Pakistan has issued repatriation laws that forced residents illegally residing in Pakistan to leave by November 1, 2023.  

The Trial of Pakistani Prisoners of War, Pakistan v. India, Interim Measures, Order (1973) ICJ Rep 328, ICGJ 129, a case before the United Nations International Court of Justice, considered whether or not to grant Pakistan’s request for interim measures regarding the handling of the Pakistani prisoners of war that were currently detained in India. The court heard this case after Pakistan informed the court of its ongoing negotiations with India and requested that the Court postpone consideration of its request for interim measures in order to facilitate those negotiations. This case references the repatriation of prisoners of war and that the process should not be interrupted by the virtue of charges of genocide against a certain number of individuals detained in India. This court decision is what laid the framework for repatriation laws in Pakistan to be both utilized and weaponized against minority groups and prisoners residing in Pakistan. Ultimately, the repatriation laws at hand need to be amended in the context of the geopolitical situation unfolding in Pakistan, as the aforesaid Pakistani Prisoners of War case has made it all the more pertinent to reduce the number of Afghani refugees flowing into Pakistan while protecting the rights and security of existing Afghani refugees currently residing in Pakistan in accordance with non-refoulement laws in Pakistan, as this would help protect the existing resources and political stability in Pakistan while providing a safe haven for Afghan refugees.

Amidst the uptick of violence directed towards marginalized residents in Pakistan, there has been a push from external factors for the Pakistani government to create laws centered around mitigating the ongoing tensions between Pakistan’s government and Afghani residents through a constitutional standpoint, focusing on how the government can play a crucial role in protecting the civil liberties of its constituents to achieve a more peaceful, safe, and tolerant society. Such a result is pivotal for quelling unrest and civil disobedience that has been plaguing both Pakistan and Afghanistan for centuries. Because Pakistan has a government that is much closer to a liberal democracy than Afghanistan, adopting laws promoting civic nationalism, where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, is a viable solution. Quelling these ethnic conflicts would allow the Pakistani government to perpetuate non-refoulement laws that protect Afghani refugees from returning to a conflict-ridden state while limiting further immigration in an effort to preserve Pakistani resources and political stability. 

The History and Legality of Non-Refoulement and Forced Removal of Residents 

To fully understand the geopolitical context of this issue, it is important to consider the history and legality of repatriation laws and how certain countries have weaponized the ability to forcefully remove residents. Repatriation laws, also known as the exercise of the right of return, is the personal right of a refugee or prisoner of war to return to their country of nationality due to specific circumstances rooted in various international, human rights, and customary international law instruments, which bears similarities to the principle of non-refoulement under international human rights law. This principle is expected to apply to all immigrants at all times, regardless of their citizenship or residency status, and this principle is explicitly delineated in the CAT and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Non-refoulement laws are implemented without any exception, and it applies wherever a State exercises jurisdiction or effective control, even when it is outside of that particular State’s territory. 

One case in particular that references the usage of non-refoulement laws and its significance regarding migrants whose residency status is in question is the COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal Appeal decision. The case centered around an Ethnic Hazar from Afghanistan whose family resided in Pakistan and whose subclass 101 visa (which allows a dependent child to enter Australia to live with their parents that are Australian citizens or permanent residents) under the Migration Act of 1958 was canceled. This was because his wife applied for a subclass 309 (Partner) visa that violated the statutory VISA requirements stating that the applicant did not have a spouse or a de-facto partner. The applicant argued that, as an Afghan Hazara with family in Pakistan, being forced to return to Afghanistan would place him and his family in constant danger and fearing kidnapping, shootings, or bombings by Islamic terrorists and cited obligations under Australia’s Convention on the Rights of the Child and Article 23 of the International Covenant on Civil and Political Rights relating to family unity and the non-refoulement obligations (a person should not be returned to a country where they faced imminent harm or danger) under the Convention Relating to the Status of Refugees. 

It is pertinent to consider the rights of individuals who are seeking asylum, regardless of their citizenship status. In Afghan Asylum Seeker v Federal Office for Migration and Refugees, Decision, 13 A 1294/14.A, ILDC 2387 (DE 2014), 15th September 2014, Germany; North Rine-Westphalia; Higher Administrative Court [OVG], an Afghan citizen applied for international protection in Germany and the asylum authority rejected his application; the applicant filed an appeal but this was rejected. The complaint argued that his right to be heard was violated as German consular officials did not question Afghan witnesses within Afghanistan as part of the evidence-gathering process. Ultimately, the core issues at hand were whether or not the right to be heard required the asylum authority to conduct witness interviews on the territory as part of its evidence gathering in an asylum application process, demonstrating how the rights of minority residents and those residing in a particular area are often overlooked if the individual lacks proper documentation, even in the context of basic human rights.

The Danger of Refoulement

The government of Pakistan has recently decided that all of the foreigners currently residing in Pakistan illegally (without valid documentation or those who have overstayed their visas) will be forcefully returned to their country of origin in a “safe and dignified manner.” This process, however, is not exempt under the mandatory human rights principle of non-refoulement. Furthermore, the process of voluntary return will continue, and the illegal foreigners returning voluntarily to their country of origin will not be arrested or detained; the process of returning illegal foreigners is said to be carried out in a ‘smooth and transparent manner,’ but any form of resistance or exploitation by the targeted individual(s) will be reported to authorities who are then at full discretion to take whatever measures they deem necessary in the name of repatriation. This blatant disregard for non-refoulement principles is extremely dangerous, as the individual human rights and protection of the Afghan immigrants are gravely compromised when they are forcefully sent to a country riddled with conflict and violence. Halting the deportations of Afghan nationals following the Taliban takeover and waiting for the human rights situation to level out in Afghanistan would allow the safe and dignified returns of Afghan immigrants. 

As per the appeal in COT15: although it is explicitly stated in the Pakistani Constitution, non-refoulement should be enforced for all Afghan refugees currently residing in Pakistan. Pakistan should stop all forced returns and continue to host Afghan nationals who fled for safety. The government must also ensure their full access to procedures where their individual human rights protection needs and their need for effective protection in line with international human rights and refugee standards, are fully assessed. On the basis of civic nationalism, the case of COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal was incorrectly decided; the appeal should not have been dismissed, as individual rights should be constitutionally protected in accordance with non-refoulement principles. Moreover, using civic nationalism as a basis of constitutionality bars cruel and unusual punishments and methods of torture inflicted upon those residing illegally in the country. Ultimately, in order to sustain political stability and maintain a level of human rights protection among Afghan migrants residing in Afghanistan, the Pakistani government must adhere to the principles of non-refoulement in accordance with the United Nations, as a State party, and put forth repatriation laws in practice in an effort to preserve the individual human rights of those seeking asylum.

The Weight of Putin’s Arrest Warrant and What’s To Come

Natalia Lalin

On March 17, the international community was stunned by the significant move made by the International Criminal Court to issue an arrest warrant for Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Lvova-Belova. The two are charged with orchestrating the systematic abduction and transportation of at least 6,000 children from occupied cities in Ukraine to Russia by means of re-education camps located throughout the country from the Black Sea all the way to Siberia, or through adoption by Russian families. Lvova-Belova herself even recently adopted a 15-year-old child from Ukraine. This act by the Court was the first form of international legal action taken in the context of the Russia-Ukraine War since its start in February 2022, and it is a symbolic acknowledgment of the gravity of the Russian government’s crimes and actions in this aggressive dispute. It is also particularly notable for condemning Putin, an acting leader of a world superpower. While he is not the first sitting head of state to be indicted by the International Criminal Court (referred to hereafter as the ICC), as three other leaders have been charged previously, it is the first time the ICC has taken this action against the leader of a Permanent Five member of the United Nations Security Council. Former heads of state Slobodan Milošević of Yugoslavia, Charles Taylor of Liberia, and Ratko Mladić of Bosnia and Herzegovina have all been previously indicted and tried at the Hague while in their positions of power. 

Despite all of this, it seems Russian officials are shrugging off the indictment. Kremlin spokesperson Dmitry Peskov proclaimed that “the very question itself is outrageous and unacceptable. Russia, like a number of other states, does not recognize the jurisdiction of this court, and therefore any of its decisions are insignificant for the Russian Federation from a legal viewpoint.” Further, a Russian Investigative Committee even opened up a retaliatory criminal case against ICC prosecutor Karim Khan and the three judges that made this judgment, claiming that their hostile actions were not just illegal, but also a purely political “attack on a representative of a foreign state enjoying international protection, in order to complicate international relations.”

Exploring the Legality of the Arrest Warrants

To better understand the origins of this debate on the legality of the arrest warrants, it is important to review the fundamentals of the ICC itself. The court was created through the Rome Statute, which the United Nations General Assembly adopted in 1998 to end legal impunity for the world’s most severe crimes. The court has official jurisdiction over cases involving genocide, grave war crimes, crimes against humanity, and crimes of aggression. Its jurisdiction is limited to the 123 countries which signed on to the Statute, totaling about two-thirds of the international community. This group famously excludes Russia, the United States, and China, amongst others. Even Ukraine is not a member country of the ICC at this time.

Nevertheless, this alone does not completely protect Putin or Lvova-Belova from the ICC’s reach: it only means Russia does not have to comply with the investigation. Nevertheless, if they were to travel to any of the countries party to the Rome Statute, the countries would be obligated to arrest them and hand them over to the ICC, where they would then be tried for their crimes at The Hague. 

 The charges have legal footing because Putin and Lvova-Belova are being accused of breaching the Genocide and Geneva Conventions, which Russia actually has signed onto. According to Article 49(1) of the Fourth Geneva Convention, the “forcible transfer or deportation of civilians, including children, is prohibited.” If given a chance, the ICC will prosecute Putin for his direct or joint involvement in these acts under Article 25(3)(a) of the Rome Statute or his failure to exercise control over subordinates who committed these acts under Article 28(b) of the Rome Statute. On the other hand, Lvova-Belova will only be prosecuted for the first accusation of involvement under Article 25(3)(a). While the ICC does not employ the death penalty, the penalty for these charges may include a life sentence.

While these crimes are currently categorized as war crimes, some speculate that they could eventually amount to crimes against humanity or even genocide, depending on Russian intention. The case would be very different if the children were transported to keep them safe rather than if Russia transported them in an attempt to wipe out the next generation of Ukrainians, as some claim. 

Feasibility of Actually Seeing Putin Behind Bars

The legality of these charges and the feasibility of a trial in the near future are two different things, mainly because Putin and Lvova-Belova cannot be tried in absentia. The ICC also has no real enforcement mechanism or police force to arrest them. So, if they are to be tried, the ICC is entirely dependent on other countries to hand them over. Otherwise, the trial will not happen. This reliance on catching Putin and Lvova-Belova while they are traveling internationally decreases the possibility of prosecution ever happening because the geographic borders of where they can and cannot go are so explicitly defined. Presumably, Putin would not be so foolish as to travel to a country where he knows he will be immediately handcuffed. This situation is also unprecedented because every other comparable case has involved a sitting head of state of a country that was a member of the ICC. Ultimately, given the implausibility of either Putin or Lvova-Belova facing real legal punishment, I believe that these indictments are key more so in their symbolism than in their potential to convict Russian leadership. 

However, it is important to note that even if they are primarily symbolic in nature, these arrest warrants have major potential to effect tangible change. First of all, the nature of the ICC’s decision to make the announcement public is effective on many levels, especially since the institution does not normally publicize arrest warrants to protect its investigations. Nevertheless, this decision to go public seemed to differentiate this case from the traditional procedure in an effort to deter the progression of the Russia-Ukraine War. Internationally, the ICC is declaring its intent to hold Russia accountable through this and potentially future charges, despite this country’s power. These future charges may be related to aerial bombardment campaigns or attacks on hospitals and other forms of civilian infrastructure, for which Russia must answer. Minimizing Putin’s geographic borders by limiting which countries he can travel to may also make it more challenging to conduct diplomatic affairs and matters of the state. Domestically, the public announcement was a strategic move to instill fear in subordinate Russian officials who were implicit in this and other harmful acts. They may now express more resistance knowing that they too can be charged for grave war crimes, just as Lvova-Belova has been. This also could affect the Russian public by making them aware of the exact tactics being used by their government, which could drum up domestic opposition to the war. 

More broadly, these arrest warrants have also reinvigorated conversations around the US’s lack of involvement with the ICC. It may even make other powerful countries reconsider their choice not to partner with the international institution if they really do want to see international justice realized. It also warns other human rights violators, like China, that their actions will not go unnoticed. Globally, these arrest warrants seem to have potentially increased the ICC’s credibility at a time when it was nearing a legitimacy crisis which could be definitively marked, amidst many years of debate, by the decision of the African Union in 2017 to explore the concept of collectively withdrawing from the institution. Nevertheless, in light of the ICC’s willingness to take such a strong stance against a powerful country and a war that has affected the entire international community, perhaps these countries will reconsider.  

Concluding Remarks 

In conclusion, despite the debate around the legality behind Putin’s arrest warrants and claims by Russia that the ICC is illegitimate in its actions, it is seemingly more legitimate than ever. Unfortunately, due to the limitations of the Court, it seems unlikely that we will see Putin behind bars anytime soon; however, these arrest warrants were necessary for sending a message to Russia and initiating the often lengthy process required for international justice. As stated by Payam Akhavan, a former UN Prosecutor, “We have to bear in mind that although the famous expression is that oftentimes justice delayed is justice denied, in international criminal justice, justice delayed very often is justice delivered because those in power today may not be in power tomorrow.” Hopefully, in due time, the world can look back at Putin’s arrest warrant as the catalyzing legal action that delivered widespread justice to the Ukrainian people and the world at large.

Justice Until Death: The Necessity of Swift and Good-Faithed Capital Punishment

Justin Murdock

Abstract

There are two factions when it comes to the debate over capital punishment: one believes it is legitimate retribution for heinous criminal acts, while the other believes it is the epitome of archaic punishments which violate the principles of the Eighth Amendment. Capital punishment in the United States is limited to five main methods: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection remains the most popular method of the death penalty. Consequently, in states that continue to employ lethal injection, cases of botched execution have long posed issues. One such example is the recent botched lethal injection of Kenneth Eugene Smith. I argue that given these instances of negligence in applications of capital punishment, more states should use newly-available alternative methods, such as nitrogen hypoxia, when administering capital punishment.

Background

The case study of focus sparked one of the greatest, most drawn-out legal fights pertaining to capital punishment. Kenneth Eugene Smith was convicted of murder in 1989 by a jury vote of 10-2 and sentenced to death row for grotesquely killing Elizabeth Dorlene Sennett in a murder for hire. Smith appealed his case for a retrial through Kenneth Eugene Smith v. State (2000), which resulted in a jury vote of 11-1 to sentence him to life without parole. However, the judge invoked §13A-5-47(e) of the 1975 Alabama Code, which allowed him to overrule the jury’s recommendation, and sentenced Smith to death. In 2017, however, Alabama introduced a statute to abolish the ability for judges to override a jury’s decision. Nevertheless, the law was not retroactive, so when Smith appealed to the Federal Supreme Court, he was denied review.

Smith argued in the same appeal that the Alabama Department of Corrections violated his due process rights under the Fourteenth Amendment since he was not accordingly notified of a nitrogen hypoxia alternative when made available in 2018 in Alabama. Following his final unsuccessful objection to his capital sentence, Smith later had his execution administered. Smith was strapped into a gurney and not fully anesthetized, resulting in the jabs in his limbs and groin feelings “like a knife”. This execution was administered quite late, and since the death warrant restriction expired at midnight, the process had to be called off. Smith’s failed execution is just another piece in Alabama’s history of botched executions: the state also botched the executions of Alan Miller and Doyle Lee Ham, with officers sleeping on their jobs and the inmates suffering from delays and chemical burns resulting from improper injections. All these cases have been united in their application of the Eighth Amendment based on their grotesque execution.

The final court decision in Smith’s case accords with the national precedent on capital punishment but opens interesting nuances to the penal issue. The reigning District Judge R. Austin Huffaker Jr. dismissed the appeal, stating that the violations alleged against the Alabama Department of Corrections (ADOC) should not pose a constitutional issue according to the Eighth Amendment—specifically its prohibition on “cruel and unusual punishment.” Past plaintiffs such as Miller and Ham have also cited a violation according to the Eighth Amendment, showing that based on precedent, the negligence of ADOC raises the question of constitutionality of the method of capital punishment rather than the practice of capital punishment itself. Essentially, the intended punishment inherently is not deemed a constitutional violation, but the actual application raises questions into the viability of the action.

Given the facts of Smith’s case and prior cases demonstrating consistent problems of negligence and inefficiency, this article brings two claims about the motive behind capital punishment and the future regarding lethal injection practices. To clarify, this article is not intended to discuss the merits of the death penalty as a whole. This concept has been disputed many times in court, often siding with its federal legality, so arguing against it in this piece would be futile. Instead, this article breaks apart specific kinds of capital punishment. In particular, the death penalty should be administered both swiftly and in good faith. If the accessory pain associated with the method of capital punishment goes beyond and impairs the ability to administer a swift execution, it could rise to cruel and unusual punishment. Since lethal injections are prone to failures that can lead to violations of the Eighth Amendment, courts should instead open viable, convenient alternatives such as exploring the safer nitrogen hypoxia execution method to accomplish the motives of the death penalty.

Legal Bases

Two parts of two amendments are fundamental to determining the legality of the punishments Smith, and others like him, suffered: the Eighth Amendment’s prohibition on “cruel and unusual punishment” and the Fourteenth Amendment’s prohibition on the abridgement of “due process.” Especially when alternatives are available but not fully delineated to the defendant, like Smith, the Fourteenth Amendment is crucial in piecing together the defendant’s rights against government punishment. If the purpose of these amendments is to protect minorities and the vulnerable by ensuring equal rights for all, any mishandled implementation of this measure could be viewed as the government exceeding its due authority to administer fair punishment. Therefore, this shows that the administration of botched lethal injection procedures, at least by the ADOC, should search for viable alternatives to avoid remaining within the bounds of the Eighth and Fourteenth Amendments.

While justices have typically sided with the government in capital punishment cases, key insights have nevertheless been shed about the merits of certain procedures, such as Smith’s botched lethal injection. For instance, in a 7-2 decision in Baze v. Rees (2008), the Supreme Court addressed the constitutionality of a four-drug lethal injection. While the Court concluded that the lethal injection as a concept did not violate the Eighth Amendment, members of the Court suggested that if states consistently utilize methods without sufficient justification compared with better alternatives, that may amount to cruel and unusual punishment. Additionally, Bucklew v. Precythe (2018), decided 5-4, involved an appeal in which Bucklew argued that his pre-existing medical condition of blood-filled tumors subjected him to excessive pain when receiving a lethal injection, culminating in “cruel and unusual punishment.” Again, the Court did not find the death penalty to amount to an unconstitutional punishment. However, Justice Gorsuch’s remarks do hint at this article’s claims of swift and good-faithed execution practices. Saying that the punishment should not provide “superadd[ed] . . . terror, pain, or disgrace,” he wrote that the death penalty should ideally be quick, but is not guaranteed to be entirely pleasant or easy. While there will undoubtedly be some degree of pain associated with the highest level of punishment there is in the country, inmates do still have rights that are supposed to prevent the administration of that punishment from being unnecessarily painful. ADOC’s negligence, however, caused it to infringe upon these rights.

Conclusions

Given the history of repeated botches and potential alternatives, insights from concurring and dissenting opinions should be kept in mind when witnessing this persistent negligence in capital punishment. If developments in nitrogen hypoxia make it a reasonable alternative, like in Alabama in 2018, defendants should be informed of such rights. Even if this novel practice has just surfaced in the realm of capital punishment, it should still be explicitly available if the state deems it to be safe. Even if nitrogen hypoxia is not safe according to other states’ laws, it is still abundantly clear that the ADOC failed its procedure and demonstrated incapability in administering lethal injection. If states still stalwart this process and refuse to provide viable alternatives, as even Supreme Court justices have opined, states will unfortunately continue to find themselves in a flurry of contested Eighth and Fourteenth Amendment violations.

Global Climate Change Litigation: A New Class of Litigation on the Rise

Diya Kraybill

As climate change has come to the forefront of the public consciousness in recent years, we have seen increased global urgency and public awareness regarding this issue. This awareness has led to the advent of a new and ever-evolving body of environmental law related to mitigating climate change risks. 

According to the London School of Economics, “climate litigation is generally recognized to have started in the United States in the late 1980s but has since emerged as a growing global phenomenon.” Climate change litigation made headlines following the 2021 ruling by the Hague District Court in the case Milieudefensie v. Shell. This landmark ruling in environmental law held that Shell was required to both set and uphold emissions standards and reduction targets by 2030. Notably, the number of climate litigation cases filed has increased significantly following the signing of the 2016 Paris Agreement, with just over 800 cases filed between 1986 and 2014 and over 1,200 cases filed between 2014 and 2022. The Paris Agreement, while not legally binding, was a pivotal step forward because it was an attempt to “promote accountability and ambition” for all nations. 

With the growing number of climate change cases in recent years, precedents are set regularly, and cases are being brought against both corporations and governments. However, as we see a rise in cases, there are noticeable discrepancies in why these cases are brought forward and the bases upon which they are decided. While cases are brought with different forms of strategic intent, there are trends in the arguments being brought forward in the cases we have seen, making it possible to sort heterogeneous cases in the field of environmental law into various categories. 

Constitutional and human rights cases concern themselves with the constitutional and moral obligations that have failed to be upheld by a nation due to climate-change-related risks to citizens. According to the United Nations, “States have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings have the necessary capacity to adapt to the climate crisis.” If inadequate environmental conditions due to climate change compromise these rights, governments are liable to be sued. Under the rule of law, governments and citizens alike are accountable to laws that are “publicly promulgated, equally enforced and independently adjudicated” and are consistent with international human rights standards.

The challenge that arises is enforcing such liability under international law. In 2008, the UN Human Rights Council (UNHRC) issued a resolution that outlined the concern that climate change “poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.” However, after conducting a later study of the relationship between human rights and climate change, they concluded that “it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” As such, these cases can be particularly challenging to bring forward, as many states will concede that climate change can interfere with the realization of human rights but reject the idea that failure to prevent climate change or take substantial action is a violation of international human rights law. The Paris Agreement is a legally binding international treaty; yet there is no formal accountability or consequence for nations failing to meet their individual goals. Instead, the Agreement focuses on transparency and ensuring that they are taking active measures to work towards their Nationally Determined Contributions (NDC). 

Administrative cases involve the review of “administrative decision-making by federal, state or local government, often concerning permitting and licensing approvals granted to high-emissions projects under environmental or planning laws.” An example of a case was ClientEarth v. Secretary of State, where ClientEarth, an environmental NGO, brought forward a case to the High Court challenging the UK government’s decision to approve what would become the largest gas plant in Europe. The court ruled in favor of the defendants, as the judge determined that the case “involved policy questions requiring a balancing of interests and that other public interests weigh against the UK’s climate goals.”  This case is illustrative of a key challenge that litigants bringing environmental claims face, as governments attempting to weigh different interests often conclude that climate change is not the most pressing issue, and can be compromised in favor of other more relevant or pressing issues. 

Private law cases involve disputes about negligence, nuisance, and public trust. For example, in Smith v. Fonterra Co-Operative Group Limited, the climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven New Zealand companies in the agriculture and energy sectors on the grounds of “public nuisance, negligence and breach of a duty to cease contributing to climate change.” However, this case, as with many other private law cases, was dismissed, as the court held that “tort law was not the appropriate vehicle for dealing with climate change” and that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” Private cases have often been dismissed on the grounds that it is the responsibility of the government, rather than the court, to address climate change impacts and that it is difficult to prove that the harm the plaintiff incurred was directly attributable to the defendant’s actions.

Fraud and consumer protection cases are typically concerned with misrepresentation claims against corporations for failing to disclose the risk associated with their products or for “greenwashing” their products or practices. For example, Ramirez v. Exxon Mobil Corp. was a 2016 securities fraud class action suit alleging that Exxon failed to disclose climate risks, and this was also the first climate-change-related securities class action against a major oil and gas company. 

It is important to recognize that climate change litigation has had mixed success, particularly as this is such a new class of action with little precedent or comparable cases. Firstly, there is the question of justiciability and whether a court has the mandate to hear a claim about decisions on climate change. A notable example of this is in the case Lho’imggin et al. vs Her Majesty the Queen (2020) where two houses of the Canadian indigenous group filed a case against the Canadian government’s failure to meet their climate goals resulting in significant warming of their territories. The Federal Court of Canada responded by stating that “when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others” and found that the case was not justiciable because the issue was inherently political rather than legal. Additionally, there is the challenge of establishing a causal link between the failure of a government to act in relation to climate change and the occurrence of subsequent negative climate developments. Litigants are, however, increasingly framing the case in terms of human rights and the state’s obligation to protect against the infringement of human rights due to climate change. 

As the scope of this new class of litigation continues to grow, it is imperative that companies are ready to respond to this changing regulatory landscape. While climate litigation is frequently met with challenges and is not always successful, the very existence of climate litigation is a powerful impetus for governments and corporate actors to uphold their social responsibility and pursue more sustainable environmental practices.

The Legality of Tattoo Discrimination in Employment

Leyuan Ma

Background

In recent years, tattoos have become increasingly popular as a form of body art in the United States. According to a 2019 survey, 30% of Americans have at least one tattoo, an increase from 21% in 2012. However, even as tattoos are now recognized as part of mainstream culture, many people are still judgmental towards tattoos due to their negative connotations, associating them with risky behavior, criminality, or gangs. As a result, people with tattoos are often concerned that their body art will hinder their chances of employment. Though a recent study argues that in practice “tattoos are not significantly associated with employment or earnings discrimination,” other research has shown that body art can be a source of employment discrimination, and individuals have indeed been dismissed from their jobs because of their tattoos.

Current Legislation

Is it legal for employers to discriminate against prospective or actual employees with tattoos? Currently, Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin, but does not yet prohibit discrimination based on tattoos or other forms of body art. In addition, federal law allows employers to establish dress codes and grooming policies that require employees to cover up their tattoos in the workplace, as long as they are applied consistently and adhere to the Equal Employment Opportunity Commission’s  guidelines. For instance, employers can order all employees to cover up visible tattoos, but cannot apply such a rule only to males or people of a certain ethnicity.

On September 29th, 2022, New York City Councilman Shaun Abreu introduced a new bill that would amend New York’s administrative code and prohibit employment, housing, and public accommodations discrimination on the basis of having a tattoo. It would create an exception for employment and apprentice training programs in which covering a tattoo is a bona fide occupational qualification, a vocational qualification that is reasonably necessary to carrying out a particular job function in the normal operation of a business or apprentice training program, and where there exists no less discriminatory means of satisfying the qualification. The bill does allow for additional exceptions, but it does not specify what those might be in its current draft language. For instance, the bill may still permit employers to discriminate against employees and applicants with tattoos featuring hate speech. Currently, the bill has been referred by Council to the Committee on Civil and Human Rights. Though Abreu’s new bill is certainly a progressive step, unfortunately no existing legislation—federal, state, or municipal—prohibits the discrimination against people with tattoos in the workplace.

Does banning tattoos in the workplace violate the First Amendment?

The most powerful argument against tattoo discrimination is that it is a violation of Americans’ First Amendment rights. According to Councilman Abreu, “tattoos are a form of personal self-expression that, too often, incur bias and discrimination from employers, landlords and service providers.” Tattooing can be seen as artistic creation. Bearing a tattoo on one’s skin also makes a strong statement about one’s personality and identity, and thus can also be a form of personal expression. Therefore, tattoos could be considered  free speech protected under the First Amendment, and thus ordering employees to cover up their tattoos is an infringement of freedom of speech. However, it should be noted that the First Amendment does not apply to private employers. It states that “Congress shall make no law […] abridging the freedom of speech,” thus only regulating the government. In other words, even though tattoos constitute free speech, private employers would not be violating the First Amendment if they ban tattoos in the workplace.

The First Amendment argument has indeed been used against governmental restrictions on tattooing. In Yurkew v. Sinclair (D. Minn. 1980), commercial tattooist David Yurkew challenged the refusal of the Minnesota State Fair to rent space for commercial tattooing at the fair. Yurkew contended that tattooing is an art form and that the process of creating a tattoo is protected First Amendment activity. The defendants disputed this claim, arguing instead that protection of the health of fair patrons and consumers justifies the exclusion of tattooing from the fair. In the end, the court ruled against Yurkew and held that the “actual process of tattooing […] is not sufficiently communicative in nature as to rise to the plateau of important activity encompassed by [the] First Amendment.”

In more recent years, courts have gradually come to recognize tattooing as a form of free speech. The Yurkew v. Sinclair rationale was rejected in Buehrle v. City of Key West in 2015, when the United States Court of Appeals for the Eleventh Circuit determined that “the act of tattooing is artistic expression protected by the First Amendment, as tattooing is virtually indistinguishable from other protected forms of artistic expression; the principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper.” In addition, in Anderson v. City of Hermosa Beach (2010), the United States Court of Appeals for the Ninth Circuit held that “in matter of first impression, [the] tattoo itself, [the] process of tattooing, and [the] business of tattooing are First Amendment protected forms of pure expression.” In Coleman v. City of Mesa (2012), the Supreme Court also ruled that a “tattoo itself is pure speech, and the process of tattooing is also expressive activity for First Amendment purposes.” In sum, according to the federal courts’ latest jurisprudents, tattoos and the act of tattooing are now forms of expression protected by the First Amendment.

So, a question arises: would federal employers be infringing on First Amendment rights if they ordered employees to cover up tattoos? Currently, many governmental jobs have restrictions on tattoos, though they vary in strictness; for example, the Connecticut State Police requires that no tattoo should be visible while on-duty in the summer uniform, while the New York State Police allows the exception of a single band tattoo on one finger, and both police departments prohibit offensive or extremist tattoos. What is the legal ground for such restrictions?

In Medici v. City of Chicago (2015), police officers alleged that the city’s policy requiring on-duty officers to cover their tattoos violated their First Amendment rights. The Court  recognized the officers’ tattoos as a form of personal expression, but held that a government employer can enact “certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” Moreover, the Court supported the Chicago Police Department’s (CPD) “interest in ensuring that professionalism and uniformity is maintained,” and granted that “due to a tattoo’s unique character,” allowing on-duty police officers to display their tattoos “would undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.” Thus, in the federal sector, employers are also allowed to ban tattoos in the workplace. 

Inherent Discrimination

Through a close analysis of regulations and legal cases, we see that it is in fact legal to discriminate against tattoos in the workplace, both in private and federal sectors. This is to say, under current legislation, employers are allowed to use tattoos as a basis to distinguish candidates, and can require employees to cover up tattoos while on the job.

In Yurkew v. Sinclair (1980), the State Fair refused to rent space to a tattoo artist because it saw tattooing as a dangerous procedure which could cause the “transmission of communicable disease such as hepatitis.” In the following decades, tattooing has been proved to be safe under sterilized conditions, and the public has become more accepting of tattoos. However, thirty-five years after Yurkew, in Medici v. City of Chicago, the Court still held that “an on-duty police officer’s public display of any tattoo imaginable may, among other things, cause members of the public to question whether allegiance to their welfare and safety is paramount.” This in truth reflects people’s inherent bias towards tattoos, still seeing them as negative reflections on one’s character, which is contrary to the reality at present: though tattoos might have once been symbols of gang affiliation or risky conduct, nowadays they are more a form of personal expression with a variety of meanings. 

Is forcing servers or police officers to cover their tattoos really necessary for them to fulfill their duties? Are all people with tattoos really more risk-taking or less trustworthy? As Abreu proposed in his new bill, employers should be required to justify their restrictions on tattoos, and prove that covering a tattoo is the least discriminatory way to fulfill necessary vocational qualifications. Though federal jobs might require employees to adhere to stricter rules, employers should nevertheless reconsider the requirements in a contemporary setting.

The False Reality of Foreign Neutrality

Justin Murdock

Abstract

As the Russian juggernaut ravages through Ukrainian cities and civilians and eastern European democracy proves to be dire in the alarming crisis, American intervention without provoking an all-out nuclear war seems like a must. However, given that the United States is currently at peace with the aggressor, Russia, as per the Neutrality Act and corresponding penal statutes in Title 18, individual citizens cannot engage in acts of aggression. There is one caveat that must be urgently addressed: the geographic boundaries of conscription, organization, and intervention. Under current laws, military intervention can be undertaken by U.S. citizens beyond U.S. borders, leading to potential issues such as the shattering of neutrality and escalation of the war. Through examination of the statutes’ texts and applications in foreign affairs and historical cases, this piece concludes that the distinction between conscription domestically and abroad must be prohibited to ensure that neutrality is genuinely preserved in our modern day. 

Background

The Neutrality Act of 1794 and corresponding US Penal Code, known together as Title 18, outline the sorts of intervention individual actors from the United States can take in a foreign conflict. These two statutes date back to the founding of the  nation and were particularly relevant in regards to European militias during the 1790s. Given Putin’s bellicose crackdown on Ukraine, however, the relevance of these laws has resurfaced in the context of modern volunteers. While the Neutrality Act of 1794 has been reenacted and amended multiple times to clarify the associated penalties and breadth of its jurisdiction, it effectively lives on in 18 U.S.C. § 960. 

Three statutes in the Penal Code are of particular importance regarding relevant action modern peacekeeping conscripts can take: 18 U.S.C. § 958, 18 U.S.C. § 959, and 18 U.S.C. § 960. The first involves accepting commission on U.S. soil against a foreign polity who is at peace with the U.S.—in this case, Russia. The second involves enlisting in the service of a foreign entity on U.S. soil, which is irrelevant to whether the respective foreign force is at war. The third involves furnishing and organizing money for foreign militaries on U.S. soil in conjunction with participating in an expedition from the United States, which is an adaptation of the statute’s first rendition under President Washington’s Neutrality Act. While Congress certainly can and should give a firm position on U.S. military intervention in foreign operations, the distinction between foreign and domestic recruitment, organization, and fundraising of the Neutrality Act should be repealed given the fallacy it provides abroad. Determined militants may take steps on foreign territory to effectively make it null and void. 

Legal Bases

The three statues in the Penal Code have gone through multiple trials and errors throughout events involving foreign militias—from the founding of the statute during the Revolutionary War to the recent applications in Operation Gideon in Venezuela and the Gambian coup d’état attempt. Title 18 is undoubtedly key to the integrity of American foreign policy, and by no means does this argument seek to diminish its past or present importance. After all, armed citizens with a desire to overthrow foreign powers for the sake of alleged domestic peacekeeping would throw the international system into anarchy; as such, penalties must exist to keep ambitious militants in check. That said, the exception regarding American military actors outside U.S. turf could allow belligerents to evade prosecution and retribution as per 18 U.S.C. §§ 958-60. These laws cite people susceptible to prosecution as “any citizen of the United States who, within the jurisdiction thereof,” or “whoever, within the United States,”—meaning, technically signing up outside U.S. soil would be legal. Regardless of the neutrality laws, would signing up to participate in a foreign conflict (that the U.S. has stated neutrality on) outside U.S. soil make a difference? Yes. On principle, would signing up violate this neutrality? Yes—it has, and it will regarding the Russo-Ukrainian War. 

The Penal Codes have been put under scrutiny regarding certain hostilities and instances of foreign intervention. Notably, Gayon v. McCarthy (1920) set forth a clarification that the furnishing of funds on U.S. turf would be sufficient to prove a violation of the Neutrality Laws. Additionally, under United States v. Murphy (1898), “military enterprises” composed and premeditated on U.S. land are grounds for violations once more. While these laws address the issues of their respective times, our increasingly-digitized world makes cyber-conscription and other means of advocacy for belligerent forces significantly easier for civilians—with boundless websites and outlets for recruitment abroad. For example, the laws present issues with digital conscription with acceptance under Sec. 958 and enlistment in Sec. 959. Additionally, though Sec. 959 has addressed the arrangement of payment, one must consider pro-bono work or payment received through non-governmental organizations representative of civilians.

Due to the specific language set forth in these laws, breaking neutrality in a way that conflicts  with U.S. foreign policy is a criminal act. Essentially, one can avoid this criminalization by launching a private war, sparking a coup, or fostering a bellicose political movement if such conscription and organization occurs outside the United States. In essence, however, they are non-neutral representatives of the United States. If a warmongering veteran joins a brigade in Ukraine on Ukrainian turf, brandishing an American patch and rifle, Russian corps will not know of American neutrality laws or assume that America is merely neutral in this crisis. While one can certainly believe that Putin’s heinous, excessive, and certainly unwarranted campaign should be denounced and chastised, one simultaneously needs to consider the Pandora’s box the Neutrality Act leaves open for alleged freedom fighters.  

Conclusions

Given the review of the vague terms set forth in various aspects of American penal law, and precedents set in case laws related to such statutes, this paper calls for the repeal of the Neutrality Act’s domestic and foreign conscription nuance. Thus, the Justice Department must eliminate the distinction, thereby banning foreign intervention, or be firm in support of civilian aid. Obviously, the former could potentially escalate, drawing all of NATO into the conflict, meaning the evident choice would be the latter.
The involvement of U.S. troops would dangerously escalate the crisis, and the burden set forth in the Neutrality Act does not help with independent U.S. conscripts dodging the restrictions and engaging militarily with Putin’s forces. As proven in past military operations, whether it be the conflicts in Afghanistan, Iraq, Syria, or even Ukraine itself in 2014, these volunteers often prove to be untrained extremists zealous for bloodshed and martyrdom. While de-escalation of the crisis and retribution of the autocratic Russia are a necessity, the Neutrality Act should not be the venue for passionate Americans to do so and should urgently be repaired to avoid military escalation. This statute constitutes a false reality of foreign neutrality, ready to implode with unforeseen military consequences.

The Forgotten Voices: Power Imbalances in Guatemalan Investor-State Dispute Settlements

by Ava Peters

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1 Prin.L.J.F. 39

On June 13, 2012, Yolanda Oquelii, leader of the La Puya Peaceful Resitance movement in Southern Guatemala, became the subject of an assassination attempt. She was targeted for starting a non-violent protest, together with many other brave women and men from her community, against a gold mining operation near their homes. They led a sit-in at the “El Tambor ” mine to protect their land from the extreme social and environmental degradation caused by exploitative practices carried out by US-based company Kappes, Cassiday & Associates (KCA). Their practices have affected air quality, as well as flora, fauna, top soil and the available quantity of water for local residents. Ever since, community members have continued their sit-in to keep vigil around the clock in the face of violent police harassment, anti-riot intervention and various legal challenges. Eventually, in 2016, their persistent protest triggered a formal lawsuit, setting off a chain reaction of cases which escalated through the Guatemalan court system. 

In 2014, the Guatemalan NGO Centre de Acción Legal, Ambiental y Social de Guatemala (CALAS) filed a case against the Ministry of Energy and Mines (MEM) contending that “Exmingua”, the Guatemalan subsidiary of KCA, did not hold a valid operating permit based on its failure to carry out community consultations required under Guatemalan law and ILO Convention 169. KCA contended that this claim was ‘meritless’ and questioned whether there was any Guatemalan law requiring the implementation of ILO 169 at the time when the mine was constructed.  However, in November 2015, the Guatemalan Supreme Court held in favour of CALAS and issued a final decision in 2016 requiring the suspension of mining activities at El Tambor. But just as the valiant efforts of La Puya seemed successful, KCA launched a counterattack, filing an ISDS case against the state of Guatemala claiming damages of $300 million.

What are ISDS Cases? 

ISDS––or investor-state dispute settlement––cases are legal challenges that allow foreign investors to resolve disputes with the government of the country in which their investment was made. They are based on legislation found in International Investment Treaties between states which typically include substantive protections and obligations that protect the economic rights of the investors. 

The international treaty relied upon in the case of Guatemala was the DR-CAFTA (Dominican Republic-Central American Free Trade Agreement). KCA argued that Guatemala was in breach of the international investor agreement terms that ensured ‘fair and equitable treatment, a minimum standard of treatment, indirect expropriation, and full protection and security.’ They claimed that the ongoing protests illegally blocked the entrance to the mine sites, preventing Exmingua from “using and enjoying” its exploration license. In addition, they argued that they were “arbitrarily and unlawfully” harmed by the MEM’s suspension of the export certificate. They calculated that they were deprived of the value[h] of the El Tambor project, amounting to $150 million, and the Santa Margarita project (of at least the same, if not greater value). Additionally, they allege that they have suffered a loss of $500,000 when they prohibited the exporting concentrate shipments. 

KCA martialled a convincing argument in the eyes of arbitrators: it is their gold mine, but the case fails to incorporate the struggles of those involved: it is also a gold mine responsible for numerous abuses against local communities, posing health and environmental risks to Guatemalan citizens. Local communities have faced violence, repression, and criminalization, whilst background forces continue to deplete the region’s natural resources. It’s an interesting consideration to make given that these claims aren’t rooted in empirical evidence. Considering this, should these facts be considered in the ISDS case? Past cases involving the DR-CAFTA suggest otherwise. Guatemala faced another claim arising out of an investment in a Guatemalan electricity distribution company by the U.S. investor Teco Guatemala Holdings LLC––a case that was decided in favor of the investor. Similar to the KCA case, Teco claimed Guatemala breached the ‘fair and equitable treatment / minimum standard of treatment including denial of justice claims’ under the IIA. The ruling emphasized the distinct power asymmetry in ISDS cases: the tribunal reasoned purely on the basis of the treaty, making no effort to acknowledge the stake held by third parties. 

Problems with ISDS

While particularly problematic, the Guatemalan case is not unique. Hundreds of ISDS cases are still pending, forcing us to question the effectiveness of the system and the millions of communities left waiting for their fate to be determined by a system pitted against them. 

Arguably, the most pressing flaw of the ISDS system is that it tends to cause a “chilling effect” on the regulatory system: a situation in which the threat of an investor’s potential claims leads to governmental reluctance to adopt policies out of fear of being sued by huge conglomerates. In other words: simply knowing that a company might sue stops smaller host states from protecting the rights of their citizens. With reference to the KCA case, the minimum claim of $300 million, if granted, would place an extortionate burden on Guatemala’s coffers. While Guatemala is in a better position than other developing countries to satisfy this debt, many other countries would face bankruptcy when confronted with such a large claim. 

Of greater concern is the lack of transparency during ISDS disputes. Compared to the US legal system, ISDS proceedings are relatively opaque and exclusive. Tribunals can decide whether to accept or reject third-party amicus briefs and, unlike other legal recourse[s], third parties have no ability to intervene, leaving local communities without a say in which their interests are significantly impacted.

ISDS cases do not enjoy a consistent thread of jurisprudence. While precedents in this form of international arbitration do exist, there is no doctrine of stare decisis, so that a previous ruling on one issue from an analogous case does not ensure that a ruling in a pending case will be the same. Cases decided regarding similar matters, even involving the same country and with the same kind of investor have produced different results. This lack of consistency is exacerbated by the absence of an appellate system to correct substantive errors and ensure predictable outcomes. Arbitrators and decision-makers can be subject to bias or constrained by a lack of independence, resulting in decisions favoring investors, with no checks and balances. The rights of local communities and the state at large are left unacknowledged, whilst the rights of investors have the potential to be overemphasized. Creating a trend, the power imbalance inherent to ISDS is only set to increase. 

Finally, the cost and duration of ISDS cases is particularly problematic. Arbitration is usually a long, drawn-out process that negatively impacts host states far more than investors. A King’s College London study revealed that ISDS tribunals took on average 181 days, and 103 days for annulment committees to reach a decision. The written phase for submitting briefs – without annulment – took on average 407 days. The KCA case was brought to the court in 2016, and for 5 years has been consuming money, time, and resources whilst wreaking havoc on powerless local communities. As environmental journalist Louis Magriel observed …”This type of arbitration rejects community self-determination and the role of the government to make decisions that protect the best interests of their population.” (Gold Mining and Violence by Louis Magriel).

Potential Solutions 

ISDS dispute resolutions must produce fair, efficient, coherent and consistent solutions. At present, this is not the situation – we need to consider improvements which recognize and uphold the rights of all parties involved. Various short and long term solutions have been proposed. 

The ‘quick fix’ solution to the shortcomings of ISDS would be dispute prevention. This involved creating institutions that act as a precautionary structure aiming to reduce the legal temperature between investors and states. It would focus on developing specific working mechanisms which mediate between all parties involved. As appealing as the immediacy of this solution sounds, it is not viable long term; more permanent solutions need to be considered to properly uphold the rights of those other than the investors. 

Longer-term reform of the ISDS system could be a hopeful, albeit lofty, aspiration to redress the power balance.  Adapting ISDS policy through the institution itself, for example through making it easier to submit amicus briefs or allow the state to establish bi-legal challenges that mirror the ISDS suit, could help create a more equal system. However, the efficacy of these outcomes are limited. Any reform of the ISDS system will be long and tiresome, and at present, there is no clear solution. 

Another potential solution, as advocated by the Columbia Center for Sustainable Investment, is to terminate or withdraw from IIA’s altogether. The Center produced a report posing some potential reforms: “Chief among [ways for states to exit or mitigate the recognized adverse effects of the more than 3,300 treaties], we’ve advocated for termination (or withdrawal of consent to ISDS arbitration) of these treaties, as a near-term solution, alongside any longer-term project.” However, this impacts the economic interests of both state and investor, so is likely to be opposed by both the governments and corporate actors involved. 

Arguably, the most extreme yet effective solution would be to create an entirely new system alternative to ISDS. Countries in Latin America have led in this pursuit, establishing the ‘Centro de Solución de controversias en Materia de Inversiones’ which aims to establish a new mechanism to resolve investment disputes. However, progress has been slow and the states involved have faced various disagreements. The EU has also attempted to create a ‘multilateral investment court,’ but the changes made from the current ISDS system are minor and have failed to consider the key shortcomings of inefficiency, lack of transparency and failure to uphold the rights of all parties. Ultimately, whilst the idea of creating an entirely new system seems optimal, the actual act of establishing one that fits the needs of all stakeholders is complex and the potential for completion is low. 
Through briefly outlining some major potential solutions, it’s obvious there is no clear answer. Yet, there is a clear goal: to make the ISDS structure more equitable and to protect the rights of marginalized, developing nations that have been exploited by huge companies. We need to continue the fight to reform the system and ensure that stakeholders don’t get left out of the conversation.