By Willi Künzli, Assistant Contributor

A group of ten financial institutions agreed in 2003 on a set of principles to guide their lending policies on international project financing. They named this set of rules the Equator Principles (“EPs”) which reached its third version ten years later, in June 2013. Another sixty-eight financial institutions worldwide have joined the Equator Principles since its initial adoption. Even though the number of financial institutions is not high compared to the overall number of lenders in project finance worldwide, financial institutions that adopted the EPs represent a significant portion of financed amounts, among which are Citibank, Credit Suisse and HSBC.

EPs’ overall purpose is to prevent its members (identified as Equator Principles Financial Institutions – “EPFIs”) from financing any project that does not meet the outlined social and environmental standards. EPs are based on the International Finance Corporation’s performance standards on social and environmental sustainability as well as the World Bank’s environmental, health and safety guidelines. EPs became the industry standard to assess social and environmental risk.

EP originated in response to an increasing demand from Non-Governmental Organizations (“NGOs”) for the adoption of specific standards and policies in international project financing with the aim of increasing social and environmental standards primarily because financial Institutions are key players in any project finance structures. They have the power to impose certain standards that other players involved may not have (e.g., local communities, employees, indigenous people affected by the respective project, environment protection NGOs etc.), or even may not be willing to impose for fear of losing investments, such as local governments. Any project that depends upon lenders to obtain the necessary resources for its development has to comply with the EPs if it intends to obtain the funds from any EPFI.

EPs standards and requirements increased during the last decade. As the World Bank and the International Finance Corporation’s standard for assessing social and environmental risks increased, the EPs also developed to achieve this new level of requirements and standards. EPFIs are now going through a transition period from the second version (“EP II”) to the third (“EP III”). EP III is the result of a draft presented in July 2011, which after a consultation process was implemented in June 2013. It will have to be applied to all new products as of January 1^st, 2014. This new version of the EP III addresses major critics from NGOs and incorporates significant changes.

EP III adopted a broader scope of application and higher standards for transparency. Although the minimum amount involved in the project capital cost continues to be US$10 million, in addition to project finance loans and project finance related advisory services included in the EP II scope, EP III is also applicable to Project-Related-Corporate loans (subject to other specific requirements, among which is the total aggregate loan amount that shall be of at least US$100 million) and bridge loans with a loan tenor of at least two years. In respect of transparency, EP III elevated the minimum requirements of information that has to be reported to the public as compared to EP II, where only high level information was publicly disclosed.

EP distinguishes between countries with stringent laws on environmental and social welfare and others with less stringent ones. The countries that fall within the first category are defined as “Designated Countries” in EP III (EP II identified them as “high income OECD”).  Projects’ compliance with laws of Designated Countries automatically fulfill the EPs’ requirements related to environmental and social assessments , environmental and social management systems and plans, stakeholder engagement and grievance mechanisms. However, project developers must still present evidence of meeting other EP principles. In addition, EP III expressly states that the EPs contains minimum requirement that EPFIs need to adopt additional requirements at their sole discretion. This is important to leave space to address certain concerns related to specific industries, where the EPs may not be sufficient.

EPFIs are required to conduct a preliminary assessment of environmental and social risks to categorize the project. After this preliminary risk assessment, the relevant project is classified either under category A (significant risk), category B (limited risk) or category C (minimal risk). The project category of the project will dictate which minimum standards are required and which risk mitigation actions the involved parties have to adopt. EP II required certain covenants for compliance with environmental and social laws, regulations and permits in financing documents for project under category A and B, which are now applicable to all projects. Under EP III, all projects’  financing documents (irrespective of its category) must contain a borrower covenant that  comply with all relevant host country environmental and social laws, regulations and permits in all material respects. This change is in line with the flaws of EP II regarding projects with lower risk choosing to waive these covenants.

Another important facet introduced in EP III is a specific human rights due diligence. In limited high risk circumstances EP III suggest it may be appropriate for a borrower to complement its environmental and social assessment with a specific human rights due diligence. The human rights standards that this due diligence addresses are the UN “Protect, Respect and Remedy Framework for Business and Human Rights” and the associated “Guiding Principles on Business and Human Rights”. Notwithstanding the fact that the EP III does not provide a specific framework for this human rights due diligence (which are left for lenders and borrowers to identify and work on a specific framework based on the project’s specificities), it inarguably represents an advance that must be highlighted. This may be the first step in addressing flaws relating to the EPs’ lack of provisions related to human rights.

It is worth mentioning that criticism continues to be drawn to the EPs. The attacks by critics are mainly based on difficulties that EP imposed on finance of projects in developing countries, where projects are undertook to generate income and employment opportunities. In addition, there is criticism relating to increased transaction costs and EPs’ non-binding nature that makes it difficult to hold an EPFI liable in cases where EPs are not complied with. However, such criticism is highly debatable since economic development cannot override environmental and social concerns and further increased transaction costs is an inherent fact where attention to other factors in addition to the capital must be given; however, the invaluable cost of adverse social and environmental impacts may certainly offset transaction costs. In respect of the non-binding nature of the EP, one must agree that in a world where capital flows almost without boundaries and where governments share distinct visions on how to balance economic development with social and environmental concerns (i.e., how to achieve sustainable development), working on a binding international law over project financing is a hard task, a task for which public international law is not yet ready.

EP is an important tool to promote sustainable development in international project finance.  The increasing number of EPFI (among which are financial institutions from developed as well as developing countries), is evidence of the higher attention that the need of promoting sustainable development in international project finance receives. Moreover, latest developments in EP III demonstrate that standards are being raised to address international concern and that the work is still in progress. The next few months are appropriate/crucial for financial institutions all over the world to review their internal project finance compliance standards and educate themselves about the new standards.

By Christian John Martinez, Assistant Contributor

On February 19, 2013, the European Union signed an agreement in Brussels (“Agreement”) creating a Unified Patent Court (“UPC”).  For decades, EU members agreed that a more unified patent system was necessary to enhance innovation and promote economic competitiveness. To that end, a European Patent Convention was signed in Munich in 1973 and the European Patent Organization was established in 1977.  A patent granted under the EPO is not “European”; once issued, it becomes a national patent subject to divergent national laws with the risk of parallel litigation on similar (or identical) issues.  One of the goals of the UPC is to change that.

According to the European Council of the European Union (Council), the UPC will ensure uniform patent law and protection, make patent enforcement affordable, and reduce the cost of patent litigation while avoiding multiple cases and potentially contradictory rulings. The UPC will launch once the UPC Agreement enters into force, which will be on the fourth month after:

1. Ratification by thirteen states, including Germany, the United Kingdom and France (the three states with the highest number of European patents in 2012); and
2. The date of amendment to Regulation (EU) No 1215/2012 (recast) on jurisdiction and enforcement of judgments in civil and commercial matters (Brussels I Regulation, eff. Jan. 10. 2015) concerning its relationship with the UPC Agreement. The aim of the amendment is to ensure compliance between the UPC Agreement and Brussels I Regulation while addressing jurisdictional rules regarding non-EU defendants.

The Preparatory Committee hopes to launch the court in early 2015.

The Council noted that the UPC is another milestone in the EU’s march toward a single market.  The EU market surpasses the United States’ market according to GDP, which is perhaps why during the Public Consultation period for the 15^th Draft of Rules of Procedure for the UPC, many large U.S. Technology firms weighed in by letter on the issue of non-practicing entities (NPEs), referred to as patent trolls.  While there is no clear definition of a troll, it tends to include entities that purchase and license patents without actually practicing (i.e., making) the underlying technology.  Technology companies tend to be the target of NPEs and contend that the frequency of patent litigation brought by NPEs harms innovation. There are several different bills in Congress addressing NPEs, and President Obama created a task force this year to address concerns about NPEs.

Sixteen companies signed the letter including, Apple, BlackBerry, and Microsoft, a trio which, through its new privateer, Rockstar, sued Google, another signatory, on October 31, 2013 in the Eastern District of Texas for infringing a handful of the 6000 patents auctioned off for $4.5 billion during Nortel’s 2011 bankruptcy proceedings.  Google stopped bidding at $4.4 billion; potentially a tragic irony certain to be noted by Monday morning quarterbacks across the globe.  The Texas salvo is global, involving companies on three continents, with Erricsson, Sony, Blackberry, Apple and Microsoft on the offensive, and Samsung, Huawei, HTC, and Google itself defending.

The Rockstar Complaint is just the latest in the global patent war involving multinational firms appearing as plaintiffs and defendants in courtrooms around the world.  A February 2013 WIPO Magazine article authored by the President of the American Intellectual Property Law Association recounted the sewing machine patent wars of the 1850’s to reassure its readers that “the sky is not falling.” Meanwhile, the CEO of Rockstar says it might fall, because it is “hard to imagine any high-tech companies that don’t use” his patented technologies, perhaps making another intervention by the Obama administration in the smartphone war inevitable.

With this backdrop, the letter sent by those sixteen companies, while warning of a global horde of trolls, could also be seen as a consensus on the ideal rules of a new global, FIFA-like league with the new UPC as the head referee.  Indeed, the rivals pinpointed several areas of concern to be addressed before the whistle blows.

First, they expressed concern about bifurcation, wherein the litigation could be heard piecemeal in different courts. Article 7 of the UPC Agreement establishes that the court of first instance shall comprise of a central division (in Paris with sections in London and Munich) as well as local and regional divisions. Each member state may host a local divisional court and two or more states may jointly host a regional division.  Thus, there could be as many as 25 local divisions with divergent local practice and culture.  Under Article 33(3)(b), a divisional court hearing an infringement suit could refer a counterclaim for revocation (invalidity) to the central division and proceed with the infringement action.  This, they fear, could allow plaintiffs to obtain a quick infringement ruling, along with an injunction barring products from most of the European market before any ruling on the validity of the patent is issued.  The signatories argue for “procedural adjustments” to provide clear guidance on how proceedings should be handled where the validity of the patent is an issue (i.e., always). They would also like an easier way to stay the infringement action—something similar to a stay pending reexamination in the United States.

The second issue identified in the letter relates to the potential for misuse of the threat of a European-wide injunction by “unprincipled litigants” to “hold up” manufacturers by making unreasonable settlement or licensing demands.  The letter references a recent spike in U.S. patent litigation, although the increase is likely due to the America Invents Act’s 2011 anti-joinder rule, which prohibits joining together accused infringers in one suit.  The letter also alleged a $29 billion “cost” to U.S. businesses in 2011 alone, apparently referring to a 2011 Boston University study often relied on by many U.S. politicians supporting patent litigation reform. The study makes certain assumptions heavily disputed under peer review, most notably defining an NPE to include universities and categorizing the $29 billion as a deadweight loss.  But the fear is not entirely groundless.  For example, in 2012 Microsoft narrowly dodged a bullet when a U.S. Court of Appeals ruled that Motorola should be enjoined from enforcing an injunction it obtained against Microsoft in Germany until after Microsoft’s arguments regarding fair licensing of Motorola’s standard essential patents were heard.  A European-wide injunction issued by the UPC would only exacerbate such a threat posed by patent holders like that of Motorola, regardless of whether they are “trolls,” and the authors in the letter cryptically opine that patent holders should not be able to use disproportionate injunctions solely to extract excessive royalties.  Thus, the authors seek amendment of the rules to extenuate disruption caused by actual or threatened European wide injunctions.

An expert group and the UPC Preparatory Committee will evaluate the letter and other input.  Thereafter, the Administrative Committee of the UPC will adopt the Rules of Procedure.  Time will tell whether the European theater will see a dramatic increase in patent litigation – either by NPEs or manufacturers – particularly in venues with a strong loser-pays system (i.e., the English Rule).  Regardless, as technology and economics are increasingly global, the UPC should perhaps be seen as a prelude to a global system of patent litigation and its implementation will provide vital lessons to that end.

By Abhilaksh Grover, Assistant Contributor

Earlier this month, Judge Mohammad Akhtaruzzman sentenced 152 Bangladesh paramilitary soldiers to death, for their role in the 2009 mutiny. This unprecedented move raised important questions about the right to fair trial of those concerned and about Bangladesh’s international obligations.

The trial began in August 2011, with around 823 force members and 23 civilians charged for mass atrocities including murder, rape and arson during the mutiny. The trials evoked a critical reaction from international organizations such as the United Nations (“UN”), Amnesty International and Human Rights Watch (“HRW”) for improper legal representation and miscarriage of justice. The UN High Commissioner for Human Rights, Ms. Navi Pillay, condemned the trials while at the same time describing the mutineers’ crimes ‘utterly reprehensible and heinous’.

The mutiny took place in February 2009 in Dhaka, when members of a paramilitary force, Bangladesh Rifles (now Border Guard Bangladesh) revolted against their superiors. The violence led to the killing of 74 people, including 57 army officers. The mutiny broke out after the soldiers demanded increased pay and better conditions. Although it is difficult to pinpoint who orchestrated the revolt, insufficient food subsidies, lack of paid vacation and resentment against superiors are the suspected main causes of the rebellion.  Additionally, the soldiers wanted to be assigned to UN peacekeeping missions, which were restricted only to soldiers of the Bangladesh Army.

Proceedings

About 6000 soldiers of the paramilitary force were convicted over the mutiny in special army courts. However, the military judges were not allowed to prosecute murder cases and could only impose maximum sentences of 7 years. The trial for 823 soldiers was then shifted to a civilian court to prosecute the murder charges. The verdict, which was delivered on November 5, 2013, sentenced 152 soldiers to death and further convicted 161 soldiers to life imprisonment. Another 262 defendants were sentenced to 10 years imprisonment with 270 being acquitted. Judge Akhtraruzzman found the testimony of witnesses to be terrifying, ‘the slain people were not merely killed, the dead bodies did not get the respect they deserved according to law.’ The verdict was met with widespread outrage.

It is believed that a number of suspects, detained for their alleged role in the mutiny, died in custody and there are reports of widespread torture, cruel, inhuman and degrading treatment. As such, the trial may be in complete contravention of Bangladesh’s international obligations under the International Covenant on Civil and Political Rights (“ICCPR”). Article 10 of the ICCPR mandates that detainees be treated with humanity and inherent dignity of the human person. Ms. Pillay has already sought an independent investigation into the custodial deaths and further mandated the results to be made public.

Bangladesh has also ratified the United Nations Convention against Torture (“UNCAT”), and Article 15 of the UNCAT prohibits evidence procured through torture to be admissible in any proceedings. If the reports of torture are verified, it will be a significant blow to Bangladesh’s legal system.  The November 5 verdict not only raised questions over capital punishment, it also brought the entire proceedings to the limelight, which might jeopardize Bangladesh’s position under international law.

Ramifications 

Although, the death sentence will still need to be confirmed by higher courts of appeal, the decision elicited widespread international criticism. Mr. Polly Truscott, Amnesty International’s deputy Asia-Pacific director said, ‘Justice has not been served with today’s ruling, which if carried out, will only result in 152 more human rights violations.’  A similar view was echoed by Mr. Tejshree Thapa of HRW.

This is not the first time that activists raised questions over legal proceedings in Bangladesh. These organizations previously criticized the trials conducted by the International Criminal Tribunal (“ICT”). The ICT was set up to investigate the atrocities committed during the 1971 war of independence against Pakistan. Ms Pillay, expressed concern over the ICT stating that  ‘[t]he ICT should be a very important means to tackle impunity for mass atrocities committed in 1971, and to provide redress to the victims who have had a long and difficult road to justice, but it is important that the proceedings meet the highest standards if they are to reinforce the rule of law in Bangladesh and the fight against impunity in the broader region.’

Although HRW had previously urged Bangladesh to ensure fair trials for the suspects of the mutiny, the judgment seems to have gone in a completely different direction. However, it raised a couple of interesting questions. It remains to be seen, whether the human rights organizations can be successful in instituting a fair investigation into the trial and whether such an investigation could lead to a conflict between the Bangladesh’s municipal law and its international obligations.

By Kathleen Tang, Assistant Contributor

The distinction between persecution and prosecution is a fine line that many asylum seekers tread when looking to leave their home country and resettle in another. Asylum seekers who are prosecuted for committing a crime in their country of origin are typically not granted asylum because doing so may lead to one country stepping on another country’s sovereignty and right to prosecute criminals within its borders. However, prosecution in the country of origin that may result in disproportionately severe punishment, or punishment for a law that is contrary to international human rights standards may fall under persecution. The UN Convention Relating to the Status of Refugees (“Convention”) includes persecution in defining a refugee as someone “unable or unwilling to return to his or her home country because of a well-founded fear of future persecution on account of one of several protected grounds: race, religion, nationality, membership of a particular social group, or political opinion.”

A case that tackles the issue of persecution vs. prosecution and has garnered international attention lately is that of the “whistleblower” Edward Snowden. The Convention states that any person who “has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee,” is not a refugee. Although it seems obvious that Snowden’s act of releasing classified information about American surveillance programs is both political and serious, the analysis is not necessarily so straightforward.

Each country party to the Convention has interpreted it differently. Russia, who has signed the convention, legally (and arguably, politically) made the decision that Snowden fell within the definition of a refugee and granted Snowden temporary asylum in August 2013. Germany is also considering granting Snowden asylum in order to have him testify before an investigative committee of the German parliament. If Snowden leaves Russia, he will lose his asylum status and will necessarily need to reapply. Therefore, if Snowden leave Russia to testify in Germany, they will have to grant him asylum. Political motivations aside, can Snowden legally be considered a refugee under the Convention?

One way that Snowden could be considered a member of the persecuted class versus the prosecuted is if he falls under the protected ground of social group. In this context, social group could be government “whistle blowers” or those who expose misconduct, dishonest or illegal activity occurring within the government. Although political opinion also seems another plausible persecution ground, a US legal case against Snowden would likely center around his leaks and not whatever beliefs led him to leak the information. Therefore it would be difficult for Snowden to claim that he is being persecuted for his political opinion; instead, he probably has a better claim for persecution based on his membership in the social group of “whistle blowers,” amongst others like Wikileaks’ chief Julian Assange.

This leads to an interesting question: how much leeway should countries have in defining these ambiguous groups, both in terms of what is a legally protected social group and who falls within the persecuted vs. prosecuted camp? The question, at least in Snowden’s case, seems to be tinged with politics. Countries are deciding the question of persecution vs. prosecution based on potential political US relation repercussions or bargaining power. In Germany the general public and politicians have gotten involved in calls for granting Snowden asylum, with a group of senior German officials writing a joint appeal requesting asylum for Snowden.

In addition, these are questions that affect many asylum seekers on a day-to-day basis in many countries; however, it is only high profile cases such as Snowden’s that garner widespread attention. Some critics claim that Snowden’s case has delegitimized the claims of many asylum seeks who are truly persecuted by their countries of origin. To these claims, Lory Rosenberg, a former Board of Immigration Appeals Judge responds:

“it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed.”

In her mind, high profile politically charged cases that may seem clear-cut do in fact blur the line between persecution and prosecution. Each individual claim needs to be accorded legitimacy, especially because courts have ruled in the past that persecution arises when an individual may be tortured upon return to a country or receive an unfair trial, a stark reality for someone like Snowden. A challenge to government authority that could trigger retaliation, even under established government laws, can amount to persecution.

The question of persecution and prosecution is one that many countries, asylum seekers, and immigration officials seeks to answer on a daily basis. Although the standards have been set by the UN convention, each case presents its own challenges as to whether a person falls within one of the protected grounds of the convention.  The case of Edward Snowden highlights some of these issues that litter the distinction between persecution and prosecution and since Snowden’s asylum in Russia expires in less than a year, time will tell which camp he will ultimately fall under.

By Myriam Denis, Assistant Contributor

Is ethnic cleansing currently happening in Myanmar? Several experts think so, including Phil Robertson, Asia director for Humans Right Watch, who recently wrote that “the Burmese government engaged in a campaign of ethnic cleansing against the Rohingya that continues today”. Professor William Schabas, former President of the International Association of Genocide Scholars, went a step further and cautioned, “we’re moving into a zone where the [genocide] word can be used.” Through campaigns of violence, legal discrimination, destruction of mosques and forcible displacement of entire clans of the Rohingya population, Buddhist monks, community leaders and the Myanmar government are successfully conducing an operation resembling what was happening in Rwanda twenty years ago. Ironically, this repression has reached a critical point, while, at the same time, world leaders are applauding Myanmar for introducing political reforms, including the liberation of Aung San Suu Kyi, releasing political prisoners and organizing elections. Even if those actions are remarkable steps for a country that only three years ago had the longest surviving military dictatorship, Myanmar’s treatment of the Rohingya undermines that progress.

A Problem Rooted in the History of Myanmar

Outbursts of violence against Rohingyas have been particularly intense and widely broadcasted in the media in the last few years, but the political crisis has been going on for several decades. The British Broadcasting Corporation (“BBC”) referred to the Rohingya as “one of the world’s most persecuted minority groups” and the United Nations called them “the world’s most vulnerable ethnic minority.” In contrast with the predominantly Burmese-speaking Buddhist majority, the Rohingyas are Muslims and speak a dialect of the Bengali language similar to what Bangladeshis spoke. They are located in Myanmar’s Rakhine state, a long coastal stretch of land bordering Bangladesh, which is majority Muslim, and linking Islamic Asia with Buddhist Asia. The Rohingyas have been living on Burmese land for generations, dating back to when the country was under British domination. However, when the military junta took over the newly independent country in 1962, General Ne Win defined national identity as strictly Burmese and Buddhist, significantly contributing to the marginalization of this group.

In the 1970s and the 1990s, the junta launched two particularly violent campaigns against the Rohingyas, Operation Naga Min (King Dragon) and Operation Pyi Thaya (Operation Clean and Beautiful Nation). The United Nations Refugee Agency referred to those operations as “ethnic cleansing campaigns led by the military junta itself.” Those attacks resulted in widespread rape, arbitrary arrests, land seizures, destruction of villages and forcible displacement of dozens of thousands of Rohingyas.

Legal Discrimination Endorsed by the Government

In 1982, Rohingyas were officially denied citizenship with the passage of the radical Burma Citizenship Law. This lack of citizenship negatively affects the lives of Rohingyas in several ways. By rendering this already vulnerable group stateless, the military junta legally denied them state protection thereby making it easier for the administration to subject Rohingyas to policies and practices that constitute human rights violations. These include travel restrictions, forced labor, property confiscation and forced eviction, destruction of houses, arbitrary taxation and marriage restrictions.

Dr. Micheal W. Charney, a University of London scholar who specializes in South East Asian studies, wrote in his paper Buddhism in Arakan: Theory and Historiography of the Religious Basis of the Ethnonym that the “Rohingya […] are compelled to thrive under really testing conditions where even their personal lives are under strict state scrutiny. Whatever property they inherited from their ancestors have been forcefully taken away from them, and granted to the Buddhist majority under the banner of different national schemes that served to institutionalize and hence legitimize racist discrimination of Rohingya”.

Many minority groups face persecution from their country’s majority population. However, the persecution against the Rohingya is organized, promoted and fully sanctioned by the Burmese government. As mentioned by Benjamin Zawacki, Senior Legal Advisor for Southeast Asia at the International Commission of Jurists, in his article Defining Myanmar’s “Rohingya Problem,” this is “a political, social, and economic system – manifested in law, policy, and practice – designed to discriminate against this ethnic and religious minority [which] makes such direct violence against the Rohingya far more possible and likely than it would be otherwise”.

The Burmese government held its last official census thirty years ago; thus, it is hard to estimate the exact proportion of the Rohingya living in Myanmar. Experts estimate they constitute a mere 5% of the total population (2 million), a number that has been in steady decline since the persecution started. However, Burmese officials state otherwise. Win Myaing, a Rakhine government spokesperson, claimed that their birth rate was ten times that of Burmese Buddhists. Also, Burmese government documents state that they account for 15% of the country’s total population, a statistic that, from the government’s point of view, legitimizes their persecution. A Rakhine politician, Shwe Maung, told The Economist that “[Rohingyas] are trying to Islamize us through their terrible birth rate.” Wirathu, a well-known and respected Buddhist monk, mentioned to Global Post “Muslims are like the African carp. They breed quickly and they are very violent. They eat their own kind.” Finally, current President Thein Sein reiterated that, for the government, “the Rohingya were not citizens of Myanmar” and that he wished to “hand over the entire ethnic group to the United Nations High Commissioner for Refugees in order to settle them in a different country.”

These widespread beliefs, endorsed by the political and religious authorities, legitimate the discriminatory and inhumane laws. Since 1994, it has been illegal for married Rohingya to have more than two children. Ironically, a women’s only option, if she does become pregnant after having two children, is abortion, which is also illegal in Myanmar. In 2013, Khin Yi, Minister of Immigration and Population, a senior policy official, publically supported the policy, stating that “[it] will benefit the Bengali women” basing his argumentation on the his view that “almost all of the Bengali women are very poor, uneducated.”

Aung San Suu Kyi Response

Perhaps the most disappointing part is that even Aung San Suu Kyi, democracy heroine in Myanmar and abroad, Nobel Peace Prize laureate and expected candidate for presidency for the 2015 elections, does not seem to have any interest in addressing this pressing issue. When she appeared on the BBC in October 2013 and was questioned on this topic, she denied ethnic cleansing was taking place and answered “the reaction of the Buddhists is […] based on fear.” Furthermore, she added “there’s a perception that Muslim power, global Muslim power, is very great and certainly that is the perception in many parts of the world and in our country too.” In a recent interview with CNN, she specified “I started in politics not as a human rights defender or a humanitarian worker, but as the leader of a political party.”

These views seem more closely aligned to those of the past military junta and the current government administration, rather than those of a woman who has fought all her life for democracy and spent years under house arrest in order to stand up for the rights of the population of Myanmar. In contrast, when US President Barack Obama visited Myanmar in November 2012, he took a clear stance and acknowledged “the danger of continued tensions” and stated “there is no excuse for violence against innocent people.” Let’s hope that in the near future, more leaders will adopt Obama’s view and stand up for Rohingyas.

By Jason MacLeod, Assistant Contributor

Drone strikes came to the forefront of the world’s imagination this October. The UN’s Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism released a detailed report last month and a press release last week, calling for more transparency on civilian casualties. Human Rights Watch and Amnesty International released reports, Between a Drone and al-Qaeda and Will I Be Next?, respectively, arguing that drone strikes violate international law. A drone documentary, Unmanned: America’s Drone Wars, was also released day. In addition, the U.S. carried out a drone attacks in Afghanistan on October 23rd, in Somalia on the 28th, and in Pakistan on the 31st.  On October 30th, a Pakistani family testified about the civilian impact of drone strikes in a sparsely attended hearing before Congress.

Nine year old Nabila Rehman, pictured above, testified to congress (where only 5 of 535 members of congress attended). She holds up a picture she drew depicting the US drone strike on her Pakistan village which killed her grandmother. She stated, “Nobody has ever told me why my mother was targeted that day. Some media outlets reported that the attack was on a car, but there is no road alongside my mother’s house. Others reported that the attack was on a house. But the missiles hit a nearby field, not a house. All of them reported that three, four, five militants were killed.”

These extra-territorial killings have become the norm – not the exception – and they demand our attention.

The growing U.S. drone fleet and China’s aggressive strategy to gain drone technology combined with the advent of continuous war together require us to examine the efficacy and morality of drone strikes under international law and the ethos of our society. The streamlined process of government killings as shown in the graph below demonstrates a logical progression to targeted killings and a general disconnect from the very act of killing itself.

Taken together, human rights law and international humanitarian law constitute a complex and interwoven system of standards, under which certain killings are permissible in certain situations. The U.S. and Israel’s legal arguments delineating who can be the subject of targeted killings rests on arguments relating to self-defense and the global war on terrorism. The U.S. asserts that it has the right to use lethal force against enemies in a foreign state when a state “consents or is unable or unwilling” to act. Moreover, the U.S. argues that their drone strikes comply with the legal principles of distinction and proportionality.

In a sense, law is that which succeeds at calling itself law. Robert Cover, in his 1989 Yale Law Review Article Violence and the Word, stated –

Legal interpretation takes place in a field of pain and death… Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.

In the case of drone attacks, the law is mobilized to offer a normative gloss to decisions and acts that have already taken place. Thus, law has lost its ability to be a moral compass in this context and instead provides only a thin facade to legitimate immoral actions and extra judicial killings. In his report, cited above, the Special Rapporteur called for transparency in civilian deaths due to drone strikes. The U.S. often fails to mention the innocent lives taken during their unmanned attacks. What about the rights of the innocent?

The most basic right is the right to life. The right to life is laid down in Article 6 of the International Covenant on Civil and Political Rights, in Article 4 of the African Charter, in Article 4 of the American Convention on Human Rights and in Article 2 of the European Convention on Human Rights. It is furthermore included in Article 3 of the Universal Declaration of Human Rights. The right to life forms the foundation for human existence and is at the core of human rights law. The right to life has been referred to as “the most important and basic of human rights. It is the foundation from which all human rights spring. If it is infringed, the effects are irreversible.”  The “supreme” status of the right is emphasized by its positioning in human rights treaties. The right to life is the first right in the International Covenant on Civil and Political Rights and in the European Convention on Human Rights. UN Special Rapporteur on extrajudicial killings, Christof Heyns emphasized that, “If the right to life is to be secured in the use of drones, it is imperative that the limitations posed by international law on the use of lethal force, as for any other lethal weapon, are strictly adhered to and not weakened by broad justifications of drone strikes.”  There must be a limit imposed by law and morality on the U.S. use of drones in extra-territorial and extra judicial killings. We must not forget or become desensitized to the innocent victims murdered in drone strikes. The separation from human contact in drone strikes and the logical progressions to killing removes the most basic and important emotion- empathy.

By Willi Künzli, Assistant Contributor

In the last decade, Latin America has experienced a rush of local and foreign-controlled companies buying up farmland. This is mainly due to four global crises: environmental, financial, energy and food.  The rush for the control of farmland is not exclusively an activity of the private sector. In fact, there are state controlled players (e.g., sovereign wealth funds), disputing farmland to ensure their respective countries’ food and fuel security.

Furthermore, the global concern related to the availability of food and cultivation areas called international attention to foreign investments in rural land acquisition. International Organizations, such as the United Nations and the World Bank, investigate the topic. Mr. Olivier De Schutter, UN Special Rapporteur on the right to food, provides additional information highlighting the situation:

“According to an estimate from IFPRI, between 15 and 20 million hectares of farmland in developing countries have been subject to transactions or negotiations involving foreign investors since 2006.”

This phenomenon deserves special attention in South America where large extensions of land combined with other region specific factors attract the attention of foreign investors.

A 2008 World Bank report entitled “Rising Global Interest in Farmland,” indicates high levels of technology and human capital, competitive land markets and a supportive investment climate as investor attractive factors in Latin American countries. Because Brazil is Latin America’s biggest economy and plays an important in role in the world commodities market, it is important to bring the attention to the latest developments in its regulation of foreign acquisition of rural land.

Global concerns that awakened international attention to the issue of foreign investment in large-scale land acquisition have also brought the attention of the Brazilian Government to the issue. Brazil took actions during the last five years to tighten control over acquisitions of land while the discussion about the legal framework to adopt is still ongoing.

In 1971 Brazil passed Federal Statute No. 5,709 (“Law 5,709”) which, among other provisions, restricts the extension of rural land that foreign-controlled Brazilian based legal entities are entitled to acquire. Law No. 5.709 established that non-Brazilians may acquire no more than fifty modules for indefinite exploitation (which size varies from 2 to 100 hectares, according to geographical, socioeconomic and ecological characteristics they share as well as the type of rural exploitation that they are best suited), and that a Brazilian legal entity under the control of non-Brazilians is to be considered a foreign legal entity for the purposes of acquiring rural land. Within the permissible land extension limits, additional approvals from regulatory bodies may be required depending on the extension of the relevant piece of land and the activity that will be developed on it. The same restrictions and regulations apply to the lease of rural land.

However, after the adoption of the Brazilian Constitution of 1988, the Brazilian Government, through its Attorney General, interpreted that the different treatment conferred to foreign-controlled Brazilian-based legal entities (as opposed to the treatment conferred to other Brazilian controlled legal entities) was unconstitutional and not enforceable. Brazilian Constitution of 1988 provides that no restriction shall be made between legal entities as to the origin of its capital and equity holders, with a few express exceptions. The vague language adopted in the 1988 Constitution text and the respective exceptions left room for debates and different interpretations in respect of the constitutionality of the restriction imposed on foreign-controlled companies in Law 5,709. The Attorney General’s interpretation in the early 1990s favored unrestricted foreign investment in Brazilian rural-land.

As a result of the above, no restrictions applied to the acquisition of rural land in Brazil if the purchaser was incorporated as a Brazilian legal entity, even if controlled by non-Brazilians. This interpretation was effective until August 2010.

In August 2010, the Brazilian Government decided to review its interpretation of Law 5,709. As of August 2010, Brazil’s Government interpreted that Law 5,709 was in line with the Federal Constitution of 1988 and its restrictions should apply to companies controlled by non-Brazilians. Land acquisitions implemented prior to August 2010 were not affected by this change and would remain valid; however, acquisitions implemented thereafter in violation of the limits that Law 5,709 established would be null and void.

International concerns related to food security, biopiracy, national security, sovereign power, new economic scenarios, land speculation, environmental concerns, among others, motivated the discussions since 2007 as well as the Brazilian Government’s change in interpretation, according to the Government’s Attorney-General.

The change in interpretation was not accompanied by widespread acceptance. Companies looking for authorization for transactions involving transfer of large extensions of land challenged the new interpretation in Brazilian State Courts by. State Courts ruled in favor of the companies and authorized transactions involving transfer between foreign controlled entities above the statutory limit (i.e., applying the former interpretation of the early 90s, as mentioned above). However, Brazilian state court case law serves only as reference in Brazilian jurisprudence and are not considered binding.

Moreover, Brazil’s Congress is debating a new legal framework to regulate foreigner’s acquisition of rural land. One of the main arguments brought in Congress to broaden regulation and provide incentives for foreign investment in land acquisition is that this kind of investment is a normal market phenomenon and has positive effects in reducing production costs. Furthermore, the text assumes that foreign investment increases productivity and creates employment opportunities, development of the affected regions, as well as technology and innovation.

However there is scarce empirical evidence and information available on the local impact of such investments in Brazil. How do these investments benefit local communities? Are these investments able to really economically and socially develop the regions? These questions remain without clear answers.

In sum, environmental, financial, energy and food concerns have triggered a high demand for cultivation areas in Brazil. The Brazilian Government attempted to control foreign investment in land acquisition by taking action and changing the interpretation of its domestic laws. Brazil’s legislative move towards a new regulation governing foreign investment in large-scale land acquisition shall continue to attract international attention.

By Abhilaksh Grover, Assistant Contributor

On October 12, 2013, the members of the African Union (“AU”) converged at its headquarters in Addis Ababa, Ethiopia to debate the future of Africa’s relationship with the International Criminal Court (“ICC”). The extraordinary summit was called in accordance with AU rules after Kenya’s request for the summit garnered a two-thirds majority vote.  Although the eventual decision of the AU was not in favor of the withdrawal of African states from the ICC, this is yet another sign of the strained relations between the ICC and the continent that makes up its largest constituency.

History

Ever since its inception in 2002, the ICC has been entangled in a myriad of controversies and accusations. The Court is often accused of having biased political agendas, so it was no surprise when politicians in African states accused the ICC of being a “western court to try African crimes” through a “neo-colonialist” approach.

The summit came in the midst of on-going cases against the newly-elected Kenyan President Uhuru Kenyata and Vice President William Ruto. Both are charged with crimes against humanity for the violence that followed the 2007 elections, which killed over a thousand Kenyans and displaced hundreds of thousands from their homes.

In compliance with the decision made at its summit in May 2013, The AU urged the ICC to refer the cases back to Kenya so that the leaders may be tried under Kenya’s national judicial process.  The ICC refused the request as illegal and commenced Ruto’s trial on September 2013.

The African movement against the ICC picked up speed when, on September 5, 2013, the Kenyan parliament passed a resolution for withdrawal of the Kenyan State from the Rome Statute (“Statute”), the treaty creating the ICC. This was the first time that a state renounced its ratification. The move for withdrawal in Kenya was primarily motivated by the ICC’s refusal to hold the trials at the time and location convenient to both Kenyatta and Ruto. There is a concern that the ICC may be incapable of dealing with such pressure tactics , which are often employed by parties to influence the outcome of the trials.

Procedure

The Kenyan case is the ICC’s fifth investigation and the first ‘proprio motu’ investigation under Article 15 of the Rome Statute without the referral of the United Nations Security Council (“UNSC”) under Article 16. According to Article 15, a prosecutor may initiate investigations on the basis of information on crimes within the jurisdiction of the court. The proprio motu investigation elicited strong opposition at the negotiation stage of the Rome Statute and remains a contested issue.

Kenya’s opposition to the ICC is also linked to the investigations under Article 15.  Kenya fears that the prosecutor might use proprio motu to improperly target its high profile leaders, leading to the politicization of the ICC.

Kenya ratified the Statute on March 15, 2005. The withdrawal procedure is governed by Article 127 and according to the Statute, withdrawal from the Statute will not affect the on-going trials. Further, Article 27 provides that a state’s withdrawal shall not hamper the duty to cooperate with the investigation. The cooperation requirements are elucidated in Articles 86 and 88 of the Statute in addition to the ICC’s Rules of Procedure and Evidence.

Although President Kenyatta and Vice President Ruto have formally pledged cooperation with the ICC, the parliamentary decision to withdraw from the ICC suggests the contrary. However, Kenya may only remove its request for withdrawal from the ICC after the President’s assent.

Implications

Kenya’s move to withdraw from the Statute and the ICC will have a huge impact on the court as well as the African continent. To begin with, the Kenya trial, which is already smeared with controversies and allegations, might result in a questionable decision. The pressure tactics employed by a few states also point towards the inability of the ICC to deal with such issues. On the other hand, most of the ICC trials deal with the African states and the rulers of these states might try and follow the Kenyan example.

Although the other parties to the ICC have not vocalized about their opinion on the current issue, Kenya’s action has indeed sent out a strong message to other state parties and the ICC itself. Furthermore, even though the move to withdraw from the ICC was thwarted by the AU at the extraordinary summit, it was decided that the case against the President and the Vice President should be terminated. In addition, the AU also proposed the amendment of Articles 27, 63 and 98 for protection of African leaders from trials at the ICC. The amendment if effective, will allow leaders to enjoy immunity from prosecution for war crimes, genocide and crime against humanity.

The greatest concern for the ICC now is its inability to guarantee that future African leaders will not be dragged into the ICC process, especially after the decision of the AU at the summit. Human rights organizations have come to the ICC’s rescue and urged the African nations to reject the call to withdraw from the ICC. Mr. Tamanda Hondura, Amnesty International’s Deputy Director of Law and Policy, was quoted, saying, that “[t]he ICC should expand its work outside Africa, but it does not mean that its eight current investigations in African countries are without basis. The victims of these crimes deserve justice.”

Another area of concern is that states like Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea Bissau, Mozambique, Sao Tome and Principe, the Republic of Sudan, and Zimbabwe, that have signed but not ratified the Rome Statute, may not ratify it or may even decide to ‘un-sign’ the Statute.

It will be interesting to see the development of the ICC and the extension of its cases to countries outside of Africa in the future. Kenya’s withdrawal, if it happens, will not only set a bad precedent for other countries but might also render the trial of the leaders ineffective.

By Christian J. Martinez, Assistant Contributor

On October 29, 2013, three years will have passed since the adoption of the Nagoya Protocol (“Protocol”) to the 1993 Convention on Biological Diversity (“Convention”). As of October 1, twenty-five nations ratified the Protocol, the most recent – Bhutan, Côte D’Ivoire, Guinea Bissau, Indonesia and Norway – accepting it during the United Nations Treaty Event in New York. According to its terms, the Protocol will go into effect upon its ratification by fifty nations.

The objectives of the Convention on Biological Diversity are the:

1. Conservation of biological diversity,
2. Sustainable use of its components, and
3. Fair and equitable sharing of the benefits from genetic resources, including by access to genetic resources and transfer of relevant technologies.

There are 193 members of the Convention. The United States signed on to the Convention on June 4, 1993 and is one of only three other countries – Andorra, Holy See, and the South Sudan – that have not yet ratified the treaty. The Nagoya Protocol is a supplementary agreement to the Convention and it provides a framework to implement the third objective listed above: the fair and equitable sharing of benefits arising out of the utilization of genetic resources and more broadly out of the utilization of traditional knowledge.

Only four members of the G20 signed and ratified the Protocol. The United States and China, the two largest economies, are not signatories.

The eleventh meeting of the Conference of the Parties to the Convention on Biological Diversity (“Conference”) occurred in Hyderabad, India on October 18-20, 2012. The Conference is the governing body of the Convention and is in charge of its implementation. According to a Conference report, the United States sent a delegation which remarked on several agenda items relating to island and coastal biodiversity as well as climate-related studies. The report also notes that the United States objected to a decision recognizing the relevance of geoengineering work already done under the auspices of the Kyoto Protocol and other treaties.

President Obama has remained largely non-committal to seeking ratification of the Convention or to signing the Nagoya Protocol. However, there are signs that the administration may push to ratify the treaty before the end of President Obama’s second term, as indicated by the Obama Administration’s position on genetic resource cases before the Supreme Court.

In 2013, the United States Justice Department filed an amicus curiae brief arguing against the patentability of isolated and unmodified DNA. Interestingly, the Justice Department acknowledged a shift in its own position and a divergence from United States Patent and Trademark Office Guidelines, which it previously defended, noting that the United States has since reevaluated “whether such patents are consistent with the settled principle that patent protection does not extend to products of nature.”

Perhaps the Justice Department’s position on the patentability of isolated genes indicates a willingness to accept the Convention’s broader goals, not only concerning genetics, but biological resources overall. With the Senate currently working with the aftershocks of a shutdown, it is unlikely that they will pick up the Convention or the Nagoya Protocol as a priority item, especially given that it has remained dormant since 1994.  

The stakes are high. In a 2009 report by Business Communications Company, the global market for botanical and plant-derived drugs predicted an increase from $19.5 billion in 2008 to $33 billion in 2013, a growth rate much more aggressive than that of the Protocol’s signatories.

The Convention on Biological Diversity and the Nagoya Protocol are the main instruments to protect and regulate bioprospecting, the development and commercialization of new products based on biological resources, which often relies on indigenous knowledge and use of plants and animals. Section 8(j) of the Convention provides for “equitable sharing” of such traditional knowledge, a remarkably short and plain statement for such a large and complex task.

However, with the rest of the world already looking forward to the Nagoya Protocol or achieving its objectives using bioprospecting agreements, and given the Justice Department’s high-profile position on patentability of isolated genes, perhaps the United States will renew its push for a ratification of the Convention and the Nagoya Protocol. 

By Kathleen Tang, Assistant Contributor

Since its inception in 1930, the World Cup, a global football (soccer) tournament, has become one of the world’s premier international sporting events. Televised broadcasting of the latest World Cup in South Africa was shown in every country and territory on Earth, reaching over 3.2 billion viewers around the world, almost half of the global population. A recent trend in World Cup host countries, starting with South Africa, has been to choose countries that have not hosted the world cup in several decades. These countries seek prestige and the world’s attention as they take on hosting the multi billion-dollar competition. The upcoming host countries are Brazil in 2014, Russia in 2018, and Qatar in 2022.

As the World Cup has grown in size and influence, its organizing committee, the Fédération Internationale de Football Association (FIFA) has had to work more closely with host nation governments. FIFA has even gone so far as changing some of these countries’ laws. This blog post will look at how the World Cup has affected the laws of past and future host countries.

Before choosing a host country, FIFA requires a government guarantee regarding certain legal issues, including, but not limited to: security, visa procedures, labor regulations, customs and tax law, and infrastructure. This alone raises a number of interesting questions. What are the boundaries between the stipulations from a governing body of a sports competition and national sovereignty? To what extent do governments actually need to follow through with these guarantees once they win the bid? What is the enforcement mechanism if governments fail to comply? Does FIFA have a role to play in pressuring countries to comply with international human rights norms? A look at a few of the most recent and upcoming World Cup host countries is illustrative.

South Africa 2010

In 2010, South Africa became the first African nation to host the World Cup. South Africa had to do much preparation work to dispel the doubts about whether or not they could sustain an event of this magnitude. This included building and renovating stadiums and creating new modes of transportation around the country. In 2006 the South African Parliament passed a special law, the 2010 FIFA World Cup Special Measures Act 11 and 12 to ensure these projects, which South Africa had promised FIFA, would be completed. For the duration of the tournament, South Africa suspended some of its constitutional rights. Critics argued this was “to protect FIFA’s cash cow.” These critiques contend that FIFA’s heavy involvement in the management of the World Cup infringes on national sovereignty in the domains of security and infrastructure for the purposes of sponsorship product promotion. Many stadiums are renovated and fenced off so that only FIFA approved products, like hot dogs and Budweiser, can be sold in stadiums, instead of allowing local vendors to sell their products. Aside from the commercial element, the temporary suspension of laws, and more shockingly, constitutional rights, which are usually only suspended in state of war or national emergency, can be a dangerous precedent.

In addition to these preparations, at the request of FIFA, South Africa also created World Cup specific FIFA World Cup courts. 56 World Cup Courts were established across South Africa, staffed with 1,500 personnel including magistrates, prosecutors, public defenders, and interpreters. These courts had jurisdictions over all crimes arising out of the World Cup tournament. These courts had an expedited trial process, in contrast to South Africa’s normal court system, which faces long delays. One case involved two Zimbabweans who robbed a foreign journalist on a Wednesday, were arrested on Thursday, stood trial, and then began 15-year jail sentences on Friday. The National Prosecuting Authority defended the courts, stating it was possible to mount a fair trial in 24 hours. This begs the question—if South Africa has proven that it can hold 24 hour trials for a man who stole two cans of Coke from a FIFA supported lounge, why can’t it do so for the many South African citizens who have to wait years for their day in court?

Brazil 2014 

With the 2014 World Cup around the corner, Brazil has been suffering the same media attacks as South Africa did prior to its hosting. News sources question if Brazil will be able to renovate its stadiums, ensure the security of the tourists and sports fans, and build adequate transportation infrastructure. In addition, Brazil has run into several issues with the guarantees they made FIFA in order to secure the 2014 bid. FIFA has stipulated that Brazil, while hosting the World Cup, must allow the sale of alcohol at stadiums (currently alcohol consumption at sporting event stadiums is prohibited). Another issue is a provision dealing with the Brazilian Government’s liability for any safety problem—the provision establishes that the Brazil, and not FIFA, will assume civil liability for damages arising from any safety-related accident in connection with the tournament. FIFA also contracted to create an area around the tournament venues where only FIFA and its partners have rights to advertise and sell products and services. This brings up issues of freedom of expression and free competition amongst non-official sponsors.  In the past, this exclusion zone has stretched as far as two kilometers from each stadium, within which no local merchant can make any money from World Cup merchandise.

Protesters, who view these requirements as violations of national sovereignty, have staged demonstrations around the new stadiums currently being built. In defense of the FIFA requirements, Jérôme Valcke, FIFA’s General Secretary, stated that FIFA is asking for nothing more or less than it did from past host nation South Africa, or from its next host nation, Russia. He contends it is necessary for host countries to recognize the World Cup as a unique event that requires some domestic law adaptations to ensure its success. However, simply because prior and future countries have consented to changing their laws, does not mean that the World Cup, as a non-governmental sports organization, is justified in modifying a nation’s legal system. In light of the recent tensions between the Brazilian government, its people, and FIFA’s legal requirements, perhaps a more detailed look into the legitimacy of World Cup Law and its justifications is on the horizon.

As evidenced above, the World Cup has the power to change, albeit temporarily, the laws of host countries. The ramifications of these changes of law are not well documented but even a temporary change of law for a sporting event is noteworthy. Although the examples above are instances where FIFA has changed host nation laws for the sake of their sponsors or for the success of the tournament more generally, there is possibility in the future of using the World Cup’s legal clout for social change.

Russia 2018/Qatar 2022

Since the passage of a law in Russia prohibiting “propaganda of nontraditional sexual relations,” FIFA has asked the 2018 World Cup host country to clarify and give more details. FIFA also reminded Russia of the World Cup’s rules against discrimination. However, FIFA could do more if it becomes apparent that Russia breaches the rule of zero tolerance against discrimination based on sexual orientation. A similar situation exists in Qatar regarding intolerance of homosexuality. Whether or not FIFA will do more remains to be seen. But if the actions of the International Olympic Committee are any indication, such international sporting organizations are more interested in financial security than in improving human rights.

The World Cup is unquestionably a unique sporting event that is watched by an international audience on an international stage. As a non-governmental, international association, FIFA, through the World Cup, has managed to temporarily change nation’s laws and will likely continue to do so in the future. However, the motivations behind for these changes and whether or not these changes have benevolent or harmful effects has yet to be well researched. Next summer, Brazil will certainly be an interesting case study of whether or not, “less democracy is sometimes better for organizing a World Cup.” FIFA and the World Cup have the power to impose new legal requirements upon sovereign nations. Ideally, in the future, this ability will be used with an eye towards human rights and ensuring a balance between the good of the competition and the good of the host nation.