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Karl Heinz Bohrer’s A Little Pleasure in Decline. Essays on Britain. [1] My friend Karl Heinz Bohrer died on 4 August 2021. He was seen as Germany’s leading literary critic, a man both brilliant in perception and prodigious in industry, whose 29 books examine the German classical tradition with reference to the ancient writers whom Karl Heinz had known from his humanist education in Germany. He had polished up a last book shortly before he died which has now been published posthumously.[2] Karl Heinz wrote in German and very little is available in English. Just one of his books has been translated: Suddenness , in 1994.[3] But Karl Heinz lived a large part of his life outside Germany—it was almost as if his own country was ‘too small a bound’. When he was Professor of Modern German Literature at Bielefeld, he lived in Paris with his second wife Undine Grünter and commuted to the Ruhr to deliver his lectures. For three separate periods of his life he indulged his passion for Britain. The first was a short stay, but from 1968 onwards he returned again and again. After he stepped down as literary editor of the Frankfurter Allgemeine Zeitung or ‘ FAZ ’ in 1974, he ended up being the paper’s cultural correspondent in Britain for the rest of the decade. Finally, he was based in London for the last two decades of his life after marrying Angela Bielenberg, née Gräfin von der Schulenburg. That first short stay was in 1953 and is described in Karl Heinz’s first volume of autobiography Granatsplitter (‘Shrapnel’),[4] as indeed is his immediate post-war fascination with all things British. He was born in Cologne on 26 September 1932 and was twelve when the war ended. On his mother’s side he had Irish roots, which might have made him inclined to like the British soldiers who occupied the Rhineland. He developed a fondness for white bread and tinned sardines and, more importantly, his grandfather took him to see British films. Laurence Olivier’s Henry V of 1944 made a big impression on him. But another influence beckoned when he was sent from his humanist ‘Gymnasium’ or grammar school to a liberal boarding school in the Black Forest in the French Zone. There, he became aware of French cinema and existentialist philosophy. He was keen on drama at school, and even studied it briefly at University in Cologne before migrating to a more conventional study of German at Göttingen and Heidelberg, where he took his doctorate. Karl Heinz taught German briefly in Sweden, but his early years were spent in cultural journalism rather than academic life, firstly on the cultural pages of Die Welt in Hamburg and later in Frankfurt am Main, where he took on the most important critical role in Germany as the Literary Editor of the FAZ in 1968. In 1974, he handed over the reins to the redoubtable Marcel Reich-Ranicki. He submitted his second doctorate or ‘Habilitation’ on Ernst Jünger in 1977 and was appointed to the University of Bielefeld, where he was Professor of Modern German Literature from 1982 to 1987. This reversion to academic life had an ulterior motive: he had been promised the editorship of the intellectual monthly Merkur in succession to Hans Schwab-Felisch, but the editor needed to be a chair-holding professor. He was appointed to the post in 1984, standing down in 2011.[5] Siren-like, England continued to beckon from across the North Sea. Karl Heinz’s daughter Beatrice told me of arriving in Dover with her father, who informed her she was going to live in a ‘great country’. The Bohrers descended at an important moment in British post-war history, and, as it so happens, it is one that I also remember well, as it represented the period between my leaving school and leaving university. Britain was still locked in its post-war insularity. We had joined the Common Market on 1 January 1973, but there was no noticeable change in the way we lived our lives. In 1975 we had our first ever national referendum when elements on the right and left attempted to reverse the decision taken by Edward Heath’s government two years before. The word ‘sovereignty’ was on all lips. Europeans—foreigners—apparently didn’t understand the joys of sovereignty. Karl Heinz got to know a very different world to post-war West Germany. Middle and upper-class Britain was fiercely white, Anglican, and profoundly snobbish. Society was small and exclusive. I was related to no one and came from an obscure if independent school. In order to make sure little Johnny or Charlie was in safe hands, my Oxford friends’ parents (like the friends themselves) would extract the following details within the first ten minutes of conversation: name of school, religion, father’s occupation (and possibly how much he earned), and whether you were related to anyone grand or famous. As a Catholic from a single-parent household whose mother struggled as a painter and art-teacher I was not promising, but Catholics were nonetheless better than Baptists or Unitarians. Like Jews there were a few grand ones, although my Irish name meant there was little chance of associating me with the Brideshead set. Countless hapless undergraduates put on plummy accents or pretended to have gone to more famous schools than the ones they actually attended. In later life, they improved their CVs by saying they had gone to better-known colleges or universities. This cosy, exclusive world was cracking up in the face of economic and social crisis. Most of the members of my still single-sex college were from state schools, but the public schoolboys, above all the ‘top-ten’ public schoolboys, were much louder, so that you could be forgiven for not noticing the others. Karl Heinz’s love for Britain did not silence his critical voice. In 1975, the year I went up, he noted the ‘decrepit factories, the shrinking industrial production, the irrational labour models, the archaic structure of the unions, the pitiful understanding of British managers for the needs of foreign markets, their tendency to invest abroad, but not at home’. He wasn’t beating a drum, but Germans did better work, and on time. ‘The words “efficiency” and “plan” are unknown to British ears […] Rationalising is control and control is unacceptable. The more you know that you are swimming against the tide the more enjoyable it seems to push these new possibilities to one side’.[6] It was a decline that had started in the 1890s, when Britain had failed to keep up with Germany and the US. He quoted Arthur Koestler, who recognised this national suicide. It was the time when many British satirical films, from I’m Alright Jack to Heavens Above , sent up the malaise that affected so many areas of British life. Not for nothing did many of these satires revolve around strikes. In October 1977, Karl Heinz focussed on New Statesman editor Paul Johnson’s decision to leave the Labour Party after twenty-four years of membership. The cause was Tony Benn—then still mostly referred to as Anthony Wedgewood-Benn—who had fought British membership of the Common Market and was the unions’ champion. This need to put trade union collectivism before all else had proved the last straw for Johnson: ‘Johnson must now write letters to the workers saying that the health of a single apprentice is more important than the possibility of literary self-expression’.[7] For Karl Heinz, the English disease was ‘alienation from the future’.[8] He travelled to Manchester, a city redolent of ‘Manchester economics’, the ‘Manchester’ Guardian , Marx and Engels. The city had its attractions: ‘Without style, yet stylish; without beauty, yet beautiful’.[9] The famous mills had been turned into shopping centres. In November 1971, he was in Yorkshire in the ‘filthy triangle’[10] enclosed by Leeds, Pontefract, and Normanton. The industrial landscape was dying. He found no job prospects for the young people at the local grammar school. It wasn’t only Manchester and Leeds. He visited Highgate Cemetery, pausing to pour scorn on the ugly, kitschig monument to Karl Marx. Marx’s disciples had attached love letters to its plinth: ‘The man is in no way dead. He lives. They speak to him constantly’.[11] Karl Heinz was more interested in the part of the cemetery that occupies the higher ground on the other side of the road. This part was closed to visitors (fifty years on it is only open for guided tours). It was overgrown and crumbling, reminding him of an exotic rainforest. The economic crisis meant that the cemetery could not afford gardeners or maintenance: ‘Gothic horror is literally present everywhere, as under every cubic metre dead Victorians are rotting’.[12] In one spot he saw the skull of an MP in a broken coffin. Grave robbers had helped themselves to objects from the newspaper baron Julius Beer’s grave. There was a plan to replace the western part of the cemetery by tower blocks, shrouding the imperial dead. Karl Heinz had revelled in the romantic aspect of Highgate Cemetery. He was most at home writing about literature, theatre, and art. He was a fully signed-up aesthete possessing a collection of dashing hats. He celebrated the centenary of Liberty’s in Regent Street in 1975, at the same time as Biba in Kensington High Street, a magnet for us teenagers in the early seventies, hit skid row. Liberty’s had been the champion of ‘arts & crafts’ in the late nineteenth century; proper design was a central tenet of Ruskin’s aesthetic teaching. In London, Karl Heinz discovered Blake and the Pre-Raphaelites only then becoming fashionable in Britain. He saw the symbolism of Blake as something that prefigured the writings of his beloved Baudelaire. In January 1971 (before he took up residence in London), Karl Heinz applied his German mind to the ramifications of Pre-Raphaelitism: the Nazarenes, Novalis, and Stefan George. The Pre-Raphaelites were reacting against Manchester. Inspired by Ruskin, the soul was ‘the adversary of society’.[13] As champions of aestheticism, Beardsley and Wilde were often invoked. Aestheticism was at the heart of the beauty of sudden ideas, which inspired Karl Heinz’s literary study, Suddenness (published in English in 1994).[14] Wilde lived a double-life. He also hankered after the demimonde, a seedy existence in anonymous hotel rooms. In this context, Karl Heinz invokes Theodor Fontane, who was a journalist for the Vossische Zeitung in London from 1856 to 1858, as he metamorphosed from pharmacist to Prussia’s greatest novelist. Fontane learned what was to become the foundation stone of the gutter press in late nineteenth century Britain: that the population loved a good murder above all else, and that Victorian London served them well—people had a tendency to disappear, leaving only the odd limb to remember them by. Certain institutions got the thumbs up. The theatre, for example, generally thrilled. The earliest article in the collection dates from November 1968 and was written in the course of his second ever visit to England. He saw the film Blow Up (1966), the very essence of ‘Swinging London’ and one of three David Hemmings films mentioned. Another was the Charge of the Light Brigade , with its debunking of empire and use of animation – another period piece. Blow Up caused him to reminisce about 1953, and seeing John Gielgud, Richard Burton, John Neville, and Michael Redgrave on stage at the Old Vic. It was another age: ‘There was no John Osborne then, and why? Young men did not need to be angry yet because they could remember food rationing from the difficult time when Britain’s fighter pilots had not yet become the legend about whom Churchill had said that it was rare for so many to have owed so much to so few’.[15] In 1976, he saw Terry Hands’ Henry V cycle at Stratford with Alan Howard as Hal. Karl Heinz remembered Olivier, whom he had met briefly at a party in Drayton Gardens in the autumn of 1953 and where he told the actor ‘I like you very much’, something which Olivier naturally appreciated.[16] He approved of this new, less nationalistic and propagandistic approach to Olivier’s wartime performance. There was no longer a need for propaganda, but he recognised ‘England’s love-affair with itself’ for all that.[17] Oh What a Lovely War was another manifestation of the British obsession with war, which Karl Heinz contrasted with the rather more responsible approach adopted by middle-class Germans. Of course it was an anti-war play and later film, where the devil came on dressed in military uniform. History was popular in Britain and ‘the present was always stamped with the past’.[18] The film once again showed the usual Britons, dominated by arts graduates from Oxford and Cambridge who were proud of their ignorance when it came to science. There were German plays to see too. Karl Heinz went to Manchester in 1976 to watch the first ever British production of Kleist’s Prince of Homburg , with Tom Courtenay in the title role.[19] Karl Heinz also had an eye for the BBC. In April 1977 he listed some of the series that were then popular: The Avengers , The Forsyte Saga , The Six Wives of Henry VIII , Upstairs, Downstairs (forerunner to Downton Abbey ). The BBC had not declined like other British institutions over the past thirty years. ‘The television drug can taste better nowhere else than England’, and yet, like everyone else in the country, the BBC had an obsession with the Second World War.[20] He cited Dad’s Army in particular. It is an obsession that Britain retains, even when few obsessives can actually remember why and when it occurred and who won it (besides Britain). On the eve of the 1975 referendum, Karl Heinz had cause to write once more about British xenophobia. He was inspired by a television series about Colditz. Good-looking, aristocratic British officers ran rings around ugly Germans. Politicians like Hans-Dietrich Genscher, Helmut Kohl, and Franz-Josef Strauss supplied the image of the ridiculous German. The British depicted their own in a more flattering light: ‘England is a narcissus who will never grow tired of looking at himself in the mirror’.[21] On the other hand, German ugliness, philistinism, and provincialism would rouse Karl Heinz throughout his life. He took pot-shots at Germany from London and Paris. Heine is the obvious model. He was nonetheless passionate in his defence of the men of 20 July 1944, and his later marriage to one of the daughters of Fritz-Dietlof Graf von der Schulenburg can only have added new vim to this view. Films such as Massacre in Rome (1975), with its fictionalised focus on the killings in the Ardeatine Caves, were a mixed blessing. In Britain, where ‘talking about Hitler was the same as talking about the Germans’, the 20 July was dismissed as ‘a false purge in the interests of a national cover-up’.[22] It is an attitude that has failed to go away, even now when we know so much more about the motives of the men and women from all walks of life who conspired to eliminate Hitler. Only three years ago both Karl Heinz and I reacted to a debunking book on Stauffenberg and a vilification of the same that appeared in the letters page of the Spectator . The campaign to remain in the Common Market came to a head at the moment of the 1975 Cup Final when two London teams—West Ham and Fulham—faced one another on the pitch. Karl Heinz juxtaposes the two events. Edward Heath and Roy Jenkins were the champions of the remain lobby then, and held their final rally in Trafalgar Square. In the far corner were Tony Benn and Michael Foot. ‘How can we compare our sovereignty with that of people who have never possessed any: we are English’.[23] There were rumblings from hoi polloi much as there had been in the fifties, at the time of the Angry Young Men. Punk was ‘the last stage of British nihilism, the decline into youth anarchy’.[24] He seized on the message of hatred embodied in the music of the Sex Pistols, the early works of Derek Jarman, the film of Anthony Burgess’s A Clockwork Orange , and Nigel Williams’ play Class Enemy at the Royal Court. Karl Heinz later wrote a literary study of Dionysus,[25] and something of his interest in the Dionysiac must have fed his enthusiasm for the 1977 Notting Hill Carnival, where a small riot marred an otherwise admirable effusion of black culture; but it also provided him with a lead into the growing unease in Britain when it came to its black ghettoes, and the dark roles played by Enoch Powell and the National Front leader John Tyndall. Reading the book, you often feel Karl Heinz might have made an excellent playwright himself, or indeed a novelist. In a long essay on the Queen’s Silver Jubilee, he writes with wry, funny observations about being a German caught up in all the forced jollity of a patriotic English street party.[26] I recall the occasion, which I spent at a street party in Oxford. The snobbery and superciliousness of his neighbours is instantly recognisable. Karl Heinz occasionally took up a political assignment when writing for Merkur. In 1976, using connections he had from the ‘Preußen-Girls’ – his name for the Schulenburg sisters – he went to Northern Ireland during the Troubles. He met Gerry Fitt and other ‘luminaries’ of the time and was horrified by Belfast: ‘the dingiest backyard in Britain (sic)’.[27] The Europa Hotel in Belfast had been wrecked many times by bombs. Karl Heinz found its brutalist allures ‘frightful’. He dismissed Heinrich Böll’s romantic evocation of Ireland, something which I had eagerly purchased after I met the great man in Cologne in 1971.[28] As a journalist, Karl Heinz watched the battle in 1977 that saw the end of the Evening News and the triumph of its rival the Evening Standard . The collection ends with an article from December 1978 on the closure of The Times , brought down by the unions that had dominated his time in Britain, and which were to be gelded by the new Conservative government of Mrs Thatcher. Mrs Thatcher is not explored in this book. Britain was to change very quickly under her rule. The small, incestuous world that was British society was soon to become less white, less Anglican, and less dominated by public schools, Oxford, and Cambridge. It was also (for a time at least) much more open to Europe. Karl Heinz loved Britain and he had plenty of friends here. The last twenty years of his life is partly described by his second volume of autobiography Jetzt (‘Now’), but formally Britain hardly acknowledged his existence.[29] When I tried to interest the Guardian in his obituary, they replied that the subject was ‘not for their readership’. For much of the time in that last period he was here he taught a semester at Stanford on Hölderlin, but I am not aware of any similar interaction with any British university. It would be an understatement to say Karl Heinz was unhappy at the result of the second referendum on Europe. At the end of his life he lost his longstanding faith in Britain and wanted to move to Berlin. Giles MacDonogh Giles MacDonogh FRHistS is a historian of Germany and author of fifteen books. These include biographies of Frederick the Great and Kaiser William II and histories of Prussia and Berlin. He is known for his best selling history of post-war Germany After the Reich (John Murray 2007). His latest book is On Germany (Hurst 2018). [1] Karl Heinz Bohrer, Ein bißchen Lust am Untergang. Englische Ansichten (Carl Hanser Verlag 1979). The book consists of a number of newspaper articles written for the Frankfurter Allgemeine Zeitung and one taken from the journal Merkur . Subsequent footnotes will state also the title and date of the article being referenced. [2] Karl Heinz Bohrer, Was alles so vorkommt. Dreizehn alltägliche Phantasiestücke (Suhrkamp 2021). [3] Karl Heinz Bohrer, Suddenness: On the Moment of Aesthetic Appearance (Columbia University Press 1994). [4] Karl Heinz Bohrer, Granatsplitter (Carl Hanser Verlag 2012). [5] Karl Heinz Bohrer, Jetzt. Geschichte meines Abenteuers mit der Phantasie (Suhrkamp 2017) 225. [6] Bohrer (n 1) 13-14. ‘Die englische Krankheit, Politische and psychologische Ursachen’, 27 September 1975. [7] ibid 103. ‘Das Gespenst des Kollectivismus’, 8 October 1977. Johnson had stood down as editor in 1970. [8] ibid 117. ‘Die Stummen und die Schreienden. In den Schächten des Untergrunds von London South East’, 26 April 1975. [9] ibid 22. ‘O Manchester’, 8 January 1977. [10] ibid 32. ‘Eine Begebenheit in Yorkshire. Fatalismus und Stolz. Englische Bergarbeiter am Rande Europas’, 20 November 1971. [11] ibid 74. ‘Der Totenwald von Highgate. Symbolismus und Horror. Die Victorianer und ihre vergesslichen Enkel’, 22 November 1975. [12] ibid 75. [13] ibid 89. ‘Die Präraffaeliten, oder Die Seele als Widersacher der Gesellschaft’, 30 January 1971. [14] Karl Heinz Bohrer, Plötzlichkeit. Zum Augenblick des ästhetischen Scheins (Suhrkamp 1981). [15] Bohrer (n 1) 181. ‘Manchmal Löwe, manchmal Einhorn’. 16 November 1968. [16] ibid 235. ‘Rückkehr zum Heroismus. Heinrich V, verlorener Haufen als nationales Märchen’, 5 June 1976; Bohrer (n 4) 315. I saw these productions. Karl Heinz doesn’t mention Timothy West, who was a wonderful Falstaff. [17] Bohrer (n 1) 235. [18] ibid 166. ‘Oh! What a lovely war, die Lust der Engländer an vergangenen Schlachten ist mehr als ein Tick’, 7 June 1969. [19] A quarter of a century later there was a new version performed at the Lyric in Hammersmith. [20] Bohrer (n 1) 68. ‘BBC. Mythos und Wirklichkeit’, 26-7 April 1977. [21] ibid 135. ‘Wie fremdenfeindlich ist England? Am deutschen Beispiel geschildert’, 5 June 1975. [22] ibid 150. ‘Der deutsche Widerstand und die Briten. Eine Diskussion im Deutschen Historischen Institut London’, 1 March 1977. [23] ibid 141. ‘Cup Final oder: Die zweite Halbzeit des Kampfes um Europa hat erst begonnen’, 10 May 1975. [24] ibid 197. ‘Haß als Zeitbombe in einer Gesellschaft ohne Liebe. Punk-Kultur und Kulturkritik’. 13 April 1978. [25] Karl Heinz Bohrer, Das Erscheinen des Dionysos. Antike Mythologie und moderne Metapher (Suhrkamp 2015). [26] Bohrer (n 1) 203-213. ‘Die Fähigkeit zu jubilieren’, 9 July 1977. [27] ibid 48. ‘Der ewige Bürgerkrieg’, originally published in Merkur 335, 1976. [28] Heinrich Böll, Irisches Tagebuch (Kiepenheuer & Witsch 1957). [29] Bohrer (n 5).

Introduction ‘Drown them in the details’, a long-standing strategic tradition of the Syrian government, was cited by Syria’s foreign minister, Walid al-Muallem, in December 2011, after signing the Arab League agreement that allowed a mission to enter Syria to monitor human rights violations, and to ensure that the Syrian government implemented the Arab Initiative.[1] The Arab League peace initiative included ending the crackdown on protests, withdrawing the army from the cities, and giving the Arab mission complete freedom to visit detention centres. In the press conference following the signing of the agreement, al-Muallem said: ‘If we are going to drown the mission in the details, they must learn to swim’, in response to a journalist who asked what the intentions are behind Syria signing, and whether Syria will drown the Arabs in the details, so that the Arab Initiative would take several years to be implemented.[2] Weeks after the UN High Commissioner for Human Rights, Navi Pillay, had stated that the Syrian Government ‘has manifestly ignored the pleas and condemnations of the international community at all levels’, the United Nations nonetheless welcomed this agreement.[3] The agreement was, however, never implemented. The Arab League monitors withdrew from Syria because the bloodshed continued. In his concluding report, the Arab Mission head Mohammed al-Dabi said that the Syrian government’s ‘intentions towards the mission since its formation were insincere, and more generally, not serious’.[4] Examples of the Syrian government’s insincerity and manipulation of its pledges and obligations under the Arab agreement and other related agreements include: Fixing fake town signs to mislead observers into areas loyal to the government. Painting olive green military vehicles with blue, so as to avoid withdrawing the army from inside the cities. Transferring detainees from detention centres to buses and circling them around the city between 8am and 5pm, in case observers decided to visit detention centres. Grasping ‘the devil’ in the details of the perpetrator governments’ reactions to the justice and human rights advocacy actions is crucial to the release of human rights defenders, lawyers, and humanitarian organisations. This will provide decision makers with the insight to plan high-impact and low-effort strategies to address and prevent grave violations of human rights in Syria. In this paper, I closely examine two recent cases where the Syrian government apparently acted in response to the international pressures to end its grave violations of human rights and consider whether those responses had a genuinely positive effect in ending the violations: Case I. Issuing a law criminalizing torture. Case II. Abolishing military Field Courts. I. Case 1. Anti-Torture Law: Nullum crimen sine lege On 30 March 2022, Syrian President Bashar al-Assad issued Law No. 16 of 2022 to criminalize torture ‘in accordance with…the provisions of the Convention against Torture, which the Syrian Arab Republic had previously ratified’,[5] according to a tweet by the Syrian presidency.[6] Like most Syrians, including victims and survivors of torture, various international human rights organizations responded to this news with a grain of salt. Human Rights Watch, for example, described the decree as an April Fools’ joke, ‘given how pervasive the use of torture is by Syrian state authorities’.[7] They noted that: While it is hard to attribute intent to a government defined by arbitrariness, the passage of the law could be a response to ongoing efforts to prosecute the use of torture by Syria officials in the conflict, including an effort by some states to hold the Syrian government accountable for torture under the United Nations Convention Against Torture.[8] Amnesty International described the decree as a legislative step towards complying with internationally recognized anti-torture conventions, but noted that ‘the new law effectively whitewashes decades of state-sanctioned human rights violations’.[9] On 18 September 2020, the Netherlands announced that it had asked the Syrian government to enter negotiations to resolve a dispute concerning Syria’s violations of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which the Netherlands and Syria are parties.[10] The Netherlands confirmed that in case no agreement was reached, it would submit the case to the International Court of Justice (ICJ). On 4 March 2021, Canada also announced that it had requested formal negotiations under UNCAT to hold Syria accountable, citing the Netherlands’ announcement.[11] In June 2022, I contacted the governments of Canada and the Netherlands to inquire about the status of their negotiations with the Syrian government.[12] They replied that to negotiate in good faith implies that the process, strategy, and correspondence with Syria are confidential and that they ‘cannot comment on the exact dates or content of any submissions or letters to the Syrian Arab Republic, the International Court of Justice, or any other party regarding this dispute for reasons of confidentiality’. Global Affairs Canada added that they can however confirm that the dispute resolution process is ongoing.[13] They said that once they reach a stage where more information can be provided, they will do so, keenly aware of the people—the Syrian victims—for whom this step was taken.[14] Whilst the dispute resolution process was ongoing, and a complex and lengthy process, they stressed that it was the next step in combating impunity and obtaining justice for the most serious crimes under international law committed against Syrian victims. On 8 June 2023, the ICJ published the document of the Dutch-Canadian joint application instituting proceedings concerning UNCAT violations.[15] The application document detailed the process of negotiations with the Syrian government, including the correspondence and meetings dates and requests made by the Netherlands and Canada. Examining these details shows that the negotiations and the issuing of Law No. 16 of 2022 to criminalize torture are significantly correlated. On 9 August 2021, the Netherlands and Canada presented a Statement of Facts and a Statement of Law to Syria in writing. The statements included a description of the relief sought by the Netherlands and Canada, in particular: ‘cessation of violations of the Convention against Torture, assurances and guarantees of non-repetition, and full reparation for victims’. The UNCAT articles which the Netherlands and Canada accused Syria of violating include Article 2: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.[16] Since then, sixty-six Notes Verbales have been exchanged between the Netherlands, Canada, and Syria, including discussions about the dispute and attempts to negotiate a resolution.[17] On 30 September 2021, Syria informed the Netherlands and Canada that it rejected ‘in toto’ the characterisation of the dispute as an admission of international responsibility for the recent breaches of its obligations under UNCAT. As a response to the Netherlands’ and Canada’s negotiations with Syria regarding its violations of UNCAT Article 2,[18] and as a pre-emptive measure to counter the accusations made by the Netherlands and Canda in foreseeable legal proceedings at the ICJ, the Syrian president Bashar al-Assad issued Law No. 16/2022 on 30 March 2022 to criminalize torture ‘in accordance with the constitutional obligations of the state that prohibits torture, and with the provisions of the Convention against Torture, which was previously ratified by the Syrian Arab Republic’. On 25 April 2022 and 5-6 October 2022, representatives from the Netherlands and Canada met in-person with representatives from Syria in Abu Dhabi, United Arab Emirates, as part of their efforts to negotiate a resolution of the dispute. After more than two years of exchanges of Notes Verbales, without any progress towards settling the dispute, the Netherlands and Canada concluded that negotiations had become deadlocked or futile.[19] On 17 October 2022, they informed Syria of their conclusion by Note Verbale. On 8 June 2023, the Netherlands and Canada (the Applicants) started legal proceedings at the ICJ to hold Syria accountable for torture under the UNCAT. They filed a joint application instituting proceedings concerning violations of the UNCAT. Together with the Application, the Applicants filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74, and 75 of the Rules of Court. However, on 15 July 2023, the ICJ announced that it decided to postpone the proceedings that were originally due to commence on Wednesday 19 July 2023, to 10 and 11 October 2023, following Syria’s request for a postponement. Law No. 16/2022: Nullum crimen sine lege Based on the UNCAT torture definition,[20] Law No. 16/2022, defines torture in Art. No. 1 as follows: For the application of the provisions of this law, torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for obtaining information or a confession from him or another person, or punishing him for an act he has committed, or intimidating or coercing him to perform an act. When such pain or suffering is inflicted on a person for any reason based on discrimination of any kind, or when it is instigated or consented to, expressly or implicitly, by an employee or any person acting in his official capacity. It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation. [21] The Latin phrase ‘Nullum crimen sine lege’ or its English equivalent ‘no crime without law’ reflects an essential principle of criminal law: that only the law can define a crime and prescribe a penalty.[22] This means that no person may be convicted of a crime for an act that was not forbidden by law at the time it was committed. Whilst the Syrian constitution and the Public Penal Code prohibit torture in loose and ambiguous terms, the act of torture itself was never defined under Syrian law. Law No. 16/2022 was the first-time torture was defined, creating a new criterion for punishment. Based on the new definition, the Syrian government can only punish torture defined in this law after the law was created. Another attention-grabbing element in the new definition is the term ‘omission’, which is not included in the UNCAT definition. Previously, Syrian law prohibited and punished those who committed torture, but not those who allowed it. The new law criminalises those who abstained from action. This means that every official, especially high-ranking officials including the head of the state, cannot be punished for omissions before this new law was issued. Law No. 16/2022 also included a provision that is not mentioned in the UNCAT definition, namely: ‘It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation’. [23] This addition apparently targets torture committed by individuals, including non-state actors, and the opposition. Thus, under Syrian national law, the Syrian judiciary is ‘legally’ permitted to not punish acts of torture committed by the state before Law No. 16/2022 was issued. However, under international law, as a state party to UNCAT, and under the command responsibility and failure to act, Syria should be obliged and be able to punish acts of torture from all perpetrators, including high-ranking officials. II. Case 2. Abolishing Military Field Courts: Between Scylla and Charybdis On 3 September 2023—only 30 days before the first ICJ hearing and following Syria's request to postpone it, in an apparent pre-emptive step to counter the accusations made by Applicants in the legal proceedings at the ICJ, al-Assad issued Decree No. 32/2023, ending the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of Military Field Courts. The Decree effectively abolished the Military Field Courts and stipulated in its Art. 2 that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. The Syrian president issued Decree No. 32/2023 ending the effect of Legislative Decree No. 109/1968 and its amendments on the establishment of Military Field Courts, after decades of countless calls from Syrians, the United Nations, human rights organisations, and others to reform or abolish these courts. This decree seemed surprising to many Syrians. For 55 years, Syrians (even children and other nationals such as Palestinians[24] and Lebanese[25] and lately dual US-Syrian citizens)[26] have suffered under these Military Field Courts. Since its creation, those courts have been used to imprison and execute tens of thousands of Syrians, including military and political opponents, journalists, lawyers, human and ethnic rights activists, and children. The rules and proceedings of those courts were so summary and arbitrary that they cannot be considered to constitute a fair trial, let alone a judicial process.[27] Military Field Courts: Background Military Field Courts were created after the 23 February 1966 military coup d’état in Syria. The coup was planned and led by Chief of Staff of the Armed Forces Salah Jadid, the commander of the Syrian Air Force, Hafez al-Assad, and army Lieutenant Colonel Mustafa Tlass, among others. Since March 1949, Syria went through around 16 military coups and coups attempts, which in some cases, handed over the government to civilians. The 1966 coup was the final nail in the coffin of democratic experimentation, parliamentary and civilian governing in post-colonial Syria and made Syria a one-party state with military authoritarian domination over the daily life of Syrians. The 1966 coup overthrew the Syrian government, took over the Baath Party leadership and announced the Interim Regional Command of the Arab Socialist Ba'ath Party, which issued Statement 1 with 2 articles: Suspending the Constitution Appointing Hafez al-Assad as defence minister The coup leadership in the Interim Regional Command appointed the head of the state and the prime minister, and within one year issued decrees and decisions that tightened the military coup leaders’ grip over the social, economic, legal, military, and intelligence aspects of life in Syria, including: Decree no. 130/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, creating the National Union of Syrian Students, which ensured the coup leaders’ control and monitoring of universities and higher education. After 2011, Bashar al-Assad used it as an intelligence branch inside universities and university residences to arrest, torture, and kill university students, and hand them over to the intelligence services,[28] Decree no. 117/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing the system of the Red Crescent Organization, a leading organisation directing and implementing humanitarian aid, which is subject to the supervision and intervention of intelligence services,[29] and practises discrimination and other violations of the principles of humanitarian work,[30] Decree no. 96/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’ allowing the seizure of the official Syrian Civil Aviation Company by the Ministry of Defence,[31] and Decree no. 109/1968,[32] ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing Military Field Courts. Military Field Courts and Fair Trial In Field Courts, sessions would last only minutes, with no witnesses or lawyer present. Some defendants were only informed of their verdict years after their trial. Others were sentenced without ever being present at a hearing.[33] Detainees that were eventually referred to parts of the court system on criminal charges were invariably subjected to multiple violations of the right to a fair trial. Proceedings of the Military Field Courts were of particular concern, owing to the general lack of evidence utilised and the imposition of death sentences.[34] Military Field Courts are exceptional courts that issue sentences that are not subject to any form of appeal. These courts can pass any sentence, including the death penalty. Their rules and proceedings are summary and arbitrary that they cannot be considered a legitimate judicial. They are not required to operate within existing legislation and, once a sentence is issued, there is no possibility of appeal. However, the sentences they issue are subject to the approval of the head of state and the Minister of Defence.[35] These courts constituted a powerful authoritarian tool: to suppress any counter-coup attempt and to persecute and prosecute rivals to power without the intervention of the fair judiciary and lawyers. These courts enabled absolute power to the 1966 coup leaders, including the new minister of defence Hafez al-Assad, to eliminate political opponents. In 2005, the German magazine Der Spiegel published an interview with Mustafa Tlass after he retired as a defence minister, having served for 32 years: Tlass no longer knows exactly how many death sentences he has signed personally, and he speaks quietly as he explains why these horrific acts were unavoidable, even the many who died by hanging. At times in the 1980s, he says, 150 death sentences a week were carried out by hanging in Damascus alone. ‘We used weapons to assume power, and we wanted to hold onto it. Anyone who wants power will have to take it from us with weapons’, says the general, smiling.[36] It is unclear if the executions Tlass signed were only issued by the Military Field Courts, or included those issued by the military courts. However, it indicates the huge number of executions issued by both military courts and Military Field Courts against opponents of the 1966 coup leaders and the Syrian regime. Syrian officials and lawyers affiliated with the Syrian bar described this decree as a positive step towards juridical reform and to end the violations of a fair trial. However, according to Decree No. 32/2023: all cases referred to the Military Field Courts will be transferred to the military justice to make the pursuit according to the rules of punishment law and military trials issued by legislative decree No. 61 for 1950. [37] The news of abolishing Military Field Courts had an emotional impact on Syrians with painful collective and personal memories of these notorious courts. It invoked the decades-long struggle and traumas of several generations in these courts. Generations of opponents, human rights activists, and lawyers have called for its abolition, some of whom spent their childhood and upbringing amid these demands and the trauma caused by these courts. The Syrian government’s comment on abolishing Military Field Courts The Director of the Military Justice Department in Syria, Major General Yazan Al-Homsi, said that ‘Legislative Decree No. 32 forms part of the reform process adopted by President Al-Assad. It is a process that is not newly born but began in the pre-war years and included various fields in administration and institutions, in the judiciary, in the military, and others’.[38] Syrian lawyer and member of the Syrian government Bar Association Ghassan Abu Alwan considered this new presidential decree ending the Military Field Courts a ‘positive step’: The new presidential legislative decree to end the work of Field Courts and transfer them to the military judiciary is a positive and important step’. It took the Assad regime 55 years of slaughtering Syrians and political opponents by illegal executions and hundreds and perhaps, thousands of demands and calls to finally end these courts. But the grim, yet unsurprising news is that Assad handed over the commission of violations and crimes against fair trials and other international law obligations from one apparatus to another. Therefore, the same crimes and violations will continue under a different name. Perhaps judges and employees of military courts will continue their work under a new desk nameplate and job title. The Military Penal Code and Fair Trial The Syrian criminal justice system, which includes civilian courts, the Counter Terrorism Court, and military and Field Courts, is systemically failing to uphold international human rights standards at every step of the judicial process.[39] Law No. 61/1950 (the Military Penal Code), [40] regarding the military courts to which Decree 32 [41] referred the Military Field Courts’ ongoing cases, allows for violations of several international treaties adopted by Syria and have articles which are not substantially different from the regulations of the abolished Field Courts. Military judiciary jurisdiction over civilians The Military Penal Code allows targeting civilians on charges based on freedom of expression, assembly, and association, and peaceful criticism, whether it is criticism of the army, the government, or economic conditions. Article 47 of the military penal code specifies the military courts’ jurisdiction and states that: These courts may be granted, by a decree taken by the Council of Ministers based on the proposal of the Commander-in-Chief of the Army and Armed Forces and the Minister of Justice, the right to consider all or some crimes against the internal security of the state.[42] Definition of crimes against the internal security of the state The Military Penal Code does not define ‘crimes against the internal security of the state’; these crimes are stipulated in the General Penal Code. According to the ‘Arab Encyclopaedia Authority’, which was established by Legislative Decree No. 3 of 1970 [43] and is affiliated with the Syrian Presidency: The Syrian legislator stipulates crimes against state security in Articles (291-310) of the Penal Code, which are: felonies against the constitution—usurpation of a political or civil authority, or military leadership—sedition—terrorism—crimes that undermine national unity or disturb peace among the elements of the nation—undermining the state’s financial position. [44] Articles (291-310) of the General Penal Code allow criminalising freedom of speech, peaceful political expression, and the freedoms of assembly and association. For example, Article 307 of the General Penal Code states that for: Every action, every writing, and every speech that intends or results in inciting sectarian or racist strife or inciting conflict between sects and various elements of the nation... The court may order the publication of the judgement. [45] 2 means in practice that the rule is not to publish. Article 309 states that: Whoever broadcasts, by one of the means mentioned in the second and third paragraphs of Article 208, fabricated facts, or false allegations to cause a decline in national banknotes or to undermine confidence in the strength of the state’s currency, its bonds, and all documents related to public financial trust, he shall be punished with imprisonment from six months to three years and a fine from two hundred and fifty pounds to one thousand pounds. [46] Article 123 of the Military Penal Code punishes: Every military or civilian person who insults the flag or the army, harms its dignity, reputation, or morale, or does anything that might weaken in the army the spirit of the military system, obedience to superiors, or the respect due to them, or criticises the actions of the General Command and those responsible for the actions of the army, in a manner degrade their dignity. [47] The Syrian Military Penal Code contains provisions that blatantly breach fair trials by allowing secret trials, banning publishing procedures, immunity for perpetrators, and targeting civilians including journalists: Decisions issued by the investigating judge are not subject to any method of review.[48] It allows execution sentences for military and civilians under many charges, including ‘anyone who incites the military to join the enemy or the rebels’.[49] Sentences in absentia allow sentenced individuals to appeal the decision within only five days.[50] Sentences in absentia allow the confiscating of all ‘existing and future movable and immovable shared and non-shared funds’. It allows prosecuting and punishing journalists.[51] It gives the military judiciary the sole right to decide on conflicts of jurisdiction with civilian courts.[52] Its jurisdiction includes crimes that military courts were given the right to decide under special regulations and laws.[53] It provides protections to the perpetrators and immunity from prosecution. The prosecution order is issued only by the Commander-in-Chief of the Army and the Armed Forces, the Syrian president.[54] Law No. 16/2022, defining and punishing torture, and Decree No. 32/2023, abolishing military Field Courts, will be used by the Syrian government at the ICJ in order to counter accusations made by the Applicants in the Court. Destroying evidence of crimes and information about disappeared persons In its Article 2, Decree No. 32 states that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. [55] The decree does not address the fate of the previous/completed/past cases records. Those records should have strong evidence of systematic grave violations of fair trial which may amount to crimes against humanity. The records likely also include vital information about the victims of enforced disappearance. According to the Syrian Military Penal Code, records of trials, decisions, and sentences should be sent to Military Public Prosecution which is tasked with handling incoming and outgoing mail between military judicial departments in the governorates. For example, execution reports should be registered and kept at the Public Prosecution.[56] Abolishing Field Courts risks getting rid of their records including death sentences. Therefore, eliminating these records means destroying the information necessary to know the fate of those who were sentenced and executed, including those who were forcibly disappeared. Evidence of crimes includes killing forcibly disappeared people by execution sentences issued by these courts under unfair trials, whose records show the absence of lawyers, and disregard claims of forced confessions under torture and various other violations under the UN Charter. III. Criminalizing Torture and Abolishing Military Field Courts: International Optics for the Syrian Government The Syrian government’s responses to international pressure and demands to end its violations of international law have been consistent for decades: if there is no benefit, enforcement mechanism, or imminent threat to the regime’s hold on power, the Syrian government ignores the pressure and denies any wrongdoing. In some cases, it responds with misleading and meaningless actions, mostly by issuing laws and decrees that do not contribute to ending its violations in practice, as established. Aside from utilising these new laws in its propaganda and destroying highly important evidence of crimes in defiance of the Applicants’ request to not destroy or render inaccessible any evidence related to the Application (including information about mass graves’ locations and death certificates stating the true causes of death), the same responses and strategies are likely to be used at the ICJ in the upcoming proceedings by the Applicants under the UNCAT. For example, in its response to the concerns of the UN Committee against Torture (CAT) over the State of Emergency and widespread use of torture in 2011, the Syrian government denied any routine use of torture and said: With the enactment of Decree No. 161 of 21 April 2011, ending the state of emergency, and Legislative Decree No. 55 of 21 April 2011, there can be no further talk about arbitrary or unlawful detention in any institution.[57] Then, in response to the CAT’s request to reform or abolish the Supreme State Security Court, the Syrian government said: The Supreme State Security Court was abolished by Legislative Decree No. 53 of 21 April 2011. The decree provided for all cases pending before the Court or with the public prosecutor’s office at the Court, to be transferred in their current state to the appropriate competent courts in accordance with the rules and procedures laid down in the Syrian Code of Criminal Procedures.[58] Additionally, on the torture complaints mechanism, Syria provided a table of the number of cases pending before the judiciary relating to allegations of torture, that are almost impossible to verify or deny. On appropriate education for persons involved in the custody, interrogation, or treatment of detainees, Syria said: The course ‘Human Rights and Public Freedoms’ is taught within the Judicial Institute. Many courses have been conducted for judges in the field of combating money laundering and the financing of terrorism, in cooperation with the World Bank and the Anti-Money Laundering and Combating the Financing of Terrorism Authority in the Syrian Arab Republic. Judges also participate in all courses held inside the country and in many courses held outside it within the framework of Human rights and public freedoms. Currently, there are many workshops implemented by the Ministry of the Interior in cooperation with the International Organization for Migration and the Austrian government within the framework of combating trafficking in persons. The ‘Human Rights’ course is taught in law colleges for undergraduate students, and it is also taught to postgraduate students in English and French. This course is also taught in the College of Political Science and many other colleges and institutes.[59] On ensuring that victims of torture obtain redress and adequate compensation: Article 164 of the Civil Code stipulates that: ‘Any mistake that causes harm to others obligates the person who committed it to compensate’, and Article 165 stipulates that: ‘A person shall be responsible for his unlawful acts whenever they are committed by him while he is distinct’. The state is responsible for free treatment for all citizens, including those who have been subjected to torture, whether health or psychological treatment. In 2012, the Syrian government responded by Note Verbale to the CAT’s request to submit a special report on measures taken to ensure that all its obligations under the UNCAT were fully implemented, that Syria would inform the CAT about the measures in its next periodic report (due in 2014) and that Syria considered that Article 19 of the Convention did not provide for the possibility for the CAT to request a special report. It also said that Syria: informed the Secretary-General, the Security Council and the Committee, about the human and material losses that have occurred in the Syrian Arab Republic since the beginning of the events in the State party until 15 March 2012, caused by the ‘actions of armed terrorist groups.[60] IV. How the Syrian government will use the new laws in its legal argument at the ICJ Legal grounds for Canada and the Netherlands’ claims at the ICJ and the new Syrian laws Based on the Syrian government's long-standing strategies of manoeuvre and manipulation, Syria will likely use these two laws as a ‘legal’ weapon at the ICJ to argue that it is fulfilling its obligations under the UNCAT to refute the accusations of the Applicants. Laws criminalizing torture and abolishing the Field Courts would be used to refute seven (a, b, c, d, i, j, k) of the twelve accusations brought by the Applicants in their complaint before the ICJ. As for the remaining five accusations (e, f, g, h, l), Syria will deny them, claiming its financial inability and state of war prevented it from submitting periodic reviews and reports. Syria will deny accusations of state torture and make the same allegations that the Syrian president deployed in an interview with the Swedish newspaper Expressen. The journalist’s question: As you know there are many serious allegations against your government, about human rights abuses committed by your side. How much do you know about torture in your prisons here?[61] The Syrian president’s answer: When you talk about torture we have to differentiate between policy of torture and individual incidents that happen by any individual…With Syria, we never had under any circumstances such a policy. If you have any breach of law, torture, revenge, whatever, it could be an individual incident that the one who committed should be held accountable for.[62] On 7 March 2020, Justice Minister Najm al-Ahmad acknowledged the existence of torture, but echoed Assad’s narrative that torture constitutes an exceptional phenomenon: I do not want to say that the prisons in Syria are five-star prisons in which there is no torture, but all I want to say is that torture constitutes a purely exceptional phenomenon.[63] The Minister, referring to Caesar’s photos,[64] also stated that the government does not allow evidence of torture or killing under torture to exist: Who is that person that we authorize—assuming that a person has been subjected to torture—to photograph this person, whether alive or dead.[65] Accusation (f) would be refuted by the Syrian government by alleging that it has many courses to ensure appropriate education of human rights to its employees. Accusation (h) would be refuted by the Syrian government by providing a table of the number of cases pending before the judiciary in cases relating to allegations of torture, that are almost impossible to verify or deny. Accusation (l) would be refuted by the Syrian government by referring to ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ as reasons that prevented it from fulfilling its obligations to report to the Committee against Torture. V. Conclusion ‘Drowning them in the details’ and pretexts of ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ are often used by the Syrian government to address the international pressures and to justify its various failures and egregious actions, that range from the inability to fulfil specific obligations to committing war crimes. Issuing or abolishing some laws in Syria in response to international pressures and action does not reflect an effective and positive change in the Syrian legal system in either theory or practice. Even if the Syrian government issued new laws or abolished others, it still has its arsenal of laws and courts. This includes the Military Penal Code, the Couter-Terrorism Court and the legalised tools and regulations that allow the authoritarian regime in Syria to continue to target the Syrian people by torturing, killing, and violating the basic principles of fair trials. The government also has its laws to protect perpetrators of torture and other grave crimes, including in its Military Penal Code. It should be clear that the real purpose of issuing such laws has nothing to do with ending human rights violations. The purpose of issuing these recent two laws is to counter accusations at the surface level before the ICJ. Mansour al-Omari Mansour al-Omari is a Syrian human rights defender and legal researcher. He holds an LLM in Transitional Justice and Conflict. Al-Omari works with international and Syrian human rights organisations to hold the perpetrators of international crimes in Syria accountable. In 2012, al-Omari was detained and tortured by the Syrian government for 356 days for documenting its atrocities while working with the Syrian Center for Media and Freedom of Expression as the supervisor of the Detainees Office. [1] ‘UN welcomes move enabling Arab League monitors to visit Syria’ UN News (20 December 2011) < https://news.un.org/en/story/2011/12/398972 > accessed 16 September 2023. [2] ‘المعلم . على العرب ان يتعلموا السباحة ب19-12-2011.flv’ HomeTears (21 April 2012) < https://www.youtube.com/watch?v=9jYm4lxf0cQ&ab_channel=HomeTears > accessed 16 September 2023. [3] UN News (n 1) [4] Anwar Malek, Revolution of a nation; Secrets of the Arab League mission to Syria (Obeikan Publishing 2017). [5] Law No.16, Law No 16, 30 March 2022 (Syria) [6] Syrian Presidency, ‘الرئيس الأسد يصدر القانون رقم /16/ للعام 2022 لتجريم التعذيب، بما يتوافق مع الالتزامات الدستورية للدولة التي تحرم التعذيب، ومع’ < https://twitter.com/Presidency_Sy/status/1509177235793711107?lang=ar-x-fm > accessed 1 October 2023. [7] ‘Torture in Syrian Prisons is Not a Joke’ ( Human Rights Watch , 1 April 2022) < https://www.hrw.org/news/2022/04/01/torture-syrian-prisons-not-joke > accessed 16 September 2023. [8] ibid. [9] ‘Syria: New anti-torture law ‘whitewashes’ decades of human rights violations’ (Amnesty International, 31 March 2022) < https://www.amnesty.org/en/latest/news/2022/03/syria-new-anti-torture-law-whitewashes-decades-of-human-rights-violations/ > accessed 16 September 2023. [10] ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands) < www.government.nl/latest/news/2020/09/18/the-netherlands-holds-syria-responsible-for-gross-human-rights-violations > accessed 16 September 2023. [11] ‘Minister of Foreign Affairs takes action on Syria’s human rights violations’ (Government of Canada) < www.canada.ca/en/global-affairs/news/2021/03/minister-of-foriegn-affairs-takes-action-on-syrias-human-rights-violations.html > accessed 16 September 2023. [12] Emails from author to Ministries of Foreign Affairs of Canada and the Netherlands (27 June 2022). [13] Email from Global Affairs Canada, Government of Canada to author (14 July 2022). [14] Email from the Dutch Ministry of Foreign Affairs to author (5 July 2022). [15] Canada and the Kingdom of the Netherlands v The Syrian Arab Republic, International Court of Justice, Joint application instituting proceedings concerning a dispute under the convention against torture and other cruel, inhuman or degrading treatment or punishment. [16] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , 10 December 1984, United Nations Treaty Series, Vol. 1465, P. 85 (entered into force 26 June 1987) [Convention against Torture]. [17] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Pending) (8 June 2023) < https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-APP-01-00-EN.pdf > accessed 16 September 2023. [18] Convention against Torture, Article 2, states ‘1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture’. [19] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (n 4). [20] Convention against Torture, Article 1 (1), states: For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [21] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [22] Guide on Article 7 of the European Convention on Human Rights, European Court of Human Rights (31 August 2022) < https://www.echr.coe.int/documents/d/echr/Guide_Art_7_ENG > accessed 16 September 2023. [23] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [24] ‘Syria: Extrajudicial execution of Bassel Khartabil a grim reminder of Syrian prison horrors’ ( Amnesty International ) < www.amnesty.org/en/latest/press-release/2017/08/syria-extrajudicial-execution-of-bassel-khartabil-a-grim-reminder-of-syrian-prison-horrors/ > accessed 29 September 2023. [25] ‘ وثائق رسمية تؤكد إعدام دمشق أربعة معتقلين لبنانيين لم تعترف باحتجازهم’ (الشرق الأوسط | اطلع على أخبار اليوم عبر صحيفة العرب الأولى) < https://aawsat.com/home/article/57366 > accessed 29 September 2023. [26] ‘U.S. Citizen, Believed Executed in Syrian Prison, Heightens Fears for Others’ ( The Wall Street Journal ) < www.wsj.com/articles/u-s-citizen-believed-executed-in-syrian-prison-heightens-fears-for-others-11545153440 > accessed 29 September 2023. [27] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ ( Amnesty International 7 February 2017) < https://www.amnesty.org/en/documents/mde24/5415/2017/en/ > accessed 16 September 2023. [28] ‘Victims of Assad's notorious Students' Union speak out – but the UN is not listening’ ( Home | Amnesty International UK ) < www.amnesty.org.uk/blogs/campaigns-blog/victims-assads-notorious-students-union-speak-out-un-not-listening > accessed 29 September 2023. [29] ‘Inside the Syrian Arab Red Crescent’ ( Syria Justice & Accountability Centre , 8 August 2019) < https://syriaaccountability.org/inside-the-syrian-arab-red-crescent/ > accessed 29 September 2023. [30] ‘The Syrian Arab Red Crescent…The Reality of the Organization and its Commitment towards the Seven Principles’ ( Jusoor For Studies )< https://jusoor.co/en/details/the-syrian-arab-red-crescent…the-reality-of-the-organization-and-its-commitment-towards-the-seven-principles > accessed 29 September 2023. [31] ‘مرسوم ربط شركة الطيران العربية السورية بوزارة الدفاع عام 1966 - التاريخ السوري المعاصر’ (التاريخ السوري المعاصر) < https :// syrmh . com /2019/12/05/ ربط - شركة - الطيران - العربية - السورية - بوزا / > accessed 29 September 2023. [32] Constituted by Legislative Decree No. 109 of 17 August 1968, published in the Official Gazette of 1968 No. 38, 12542. [33] Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (11 March 2021, A/HRC/46/55). [34] ibid. [35] (n 7). [36] Translated by Christopher Sultan at ‘A 101 Course in Mideast Dictatorships’ The New York Times (New York, 21 February 2005) < https://www.nytimes.com/2005/02/21/international/europe/a-101-course-in-mideast-dictatorships.html > accessed 3 October 2023. [37] Article 2, Decree No. 32 for 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (Syria). [38] Muhammad Manar Hamijo, ‘Major General Al Homsi to Al Watan: It is part of the reform process that began years ago, and the war may have delayed many steps, but it does not cancel them... President Al–Assad ends the work of the Field Courts and refers their cases to the military judiciary’ Al Watan Newspaper (Damascus, 4 September 2023) < https://alwatan.sy/archives/359480 > accessed 5 September 2023. [39] ‘Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic’ UN Human Rights Council (3 February 2016, A/HRC/31/CRP.1). [40] Military Penal Code (n.d) (Syria). [41] Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria) [42] Article 47, Military Penal Code (n.d) (Syria). [43] Legislative Decree No. 3 of 1970 (n.d) (Syria). [44] الجرائم الواقعة على أمن الدولة (الموسوعة العربية) < https://arab-ency.com.sy/ency/details/2479/7 > accessed 29 September 2023. [45] Article 307, General Penal Code, (n.d) (Syria). [46] Article 309, General Penal Code, (n.d) (Syria). [47] Article 123, Military Penal Code, (n.d) (Syria). [48] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 26. [49] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 160. [50] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 15 (1). [51] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (6). [52] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 51. [53] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (4). [54]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 53 and Legislative Decree No. 64 of 2008 on the trial of police officers, customs officers, and political security personnel before the military judiciary (المرسوم التشريعي 64 لعام 2008 المتضمن محاكمة ضباط الشرطة وعناصرها وعناصر الجمارك والأمن السياسي أمام القضاء العسكري). [55] Article 2, Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria). [56]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 92. [57] United Nations, Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention Comments and follow–up responses of the Syrian Arab Republic to the concluding observations of the Committee against Torture report of Committee against Torture (6 September 2011, CAT/C/SYR/CO/1/Add.1). [58] ibid. [59] ibid. [60] United Nations, Committee against Torture, Consideration by the Committee against Torture of the implementation of the Convention in the Syrian Arab Republic in the absence of a special report requested pursuant to article 19, paragraph 1, in fine; Concluding observations of the Committee against Torture (29 June 2012, CAT/C/SYR/CO/1/Add.2). [61] Kassem Hamadé, ‘He denies torture – that has been caught on camera’ Expressen (Damascus, 17 April 2015) < https://www.expressen.se/nyheter/mote-med-al-assad/del-2/en/ > accessed 16 September 2023. [62] Ibid. [63] Mansour Omari, ‘al Fatih al–Islami symposium: acknowledging ‘Caesar’ and torture’ Enab Baladi Newspaper (10 March 2020) < https://www.enabbaladi.net/archives/368924 > accessed 16 September 2023. [64] ‘If the Dead Could Speak; Mass Deaths and Torture in Syria’s Detention Facilities’ Human Rights Watch (16 December 2015) < https://www.hrw.org/report/2015/12/16/if-dead-could-speak/mass-deaths-and-torture-syrias-detention-facilities > accessed 16 September 2023. [65] Omari (n 63)

Like many other Rwandans, I heard for the first time of the United Kingdom (UK)’s plan to send its unsolicited asylum seekers to Rwanda to claim asylum there on the news. It was when the then UK Secretary of State for Home Department, The Rt Hon Priti Patel, and the Rwandan Minister of Foreign Affairs and International Co-operation, Dr Vincent Biruta, were shown shaking hands on media across the word, after signing what the two countries called an ‘Immigration and Economic development partnership’ in Kigali, in April 2022. The topic had never been debated in the Rwandan parliament and neither had it been canvassed in the local media prior to the announcement and signing of the partnership. Priti Patel, representing the British government, said that the UK had signed a world-leading Migration Partnership with Rwanda which can see those arriving dangerously, illegally, or unnecessarily into the UK relocated to Rwanda to have their claims for asylum considered and, if recognised as refugees, to build their lives there. She added that this will help break the people smugglers’ business model and prevent loss of life, while ensuring protection for the genuinely vulnerable. Dr Vincent Biruta, representing the Rwandan government, said that there is a global responsibility to prioritise the safety and well-being of migrants, and Rwanda welcomes this partnership with the United Kingdom to host asylum seekers and migrants and offer them legal pathways to residence. He also stated that the partnership is about ensuring that people are protected, respected, and empowered to further their own ambitions and settle permanently in Rwanda if they choose.[1] The Rwandan government’s official press release, issued straight after the signing of both countries scheme of asylum transfer to Rwanda, reads that the partnership reflects Rwanda’s commitment to protect vulnerable people around the world.[2] The press release highlights that by relocating migrants to Rwanda, the dignity and rights of those migrants will be respected. It claims that migrants will be provided with a range of opportunities, including for personal development and employment, in a country that has consistently been ranked among the safest in the world. A considerable number of Rwandans have experienced what it means to be displaced, and even formerly or currently been refugees themselves, due to historical conflicts and/or political oppression as well as economic struggles in Rwanda. Rwandans, irrespective of their political stance—either against or for the ruling party in Rwanda—would understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives. Therefore, most Rwandans are sensitive to the plight of those forced to leave their home countries and would be more than willing to make them feel welcome. However, this does not change the fact that the arrangement to deport asylum seekers from the UK to Rwanda is unlawful and that Rwanda does not qualify as a safe third country to send asylum seekers to. Rwanda’s Legitimate Actions to Solve Global Immigration Issues As a signatory to the 1951 United Nations Convention Relating to the Status of Refugees (ratified on 26 January 1982) and the 1967 Protocol (ratified on 26 January 1982) as well as the 1969 Organization of Africa Unity (OAU) Convention Concerning Refugees (ratified on 26 January 1980), Rwanda already delivers upright and permissible actions to ensure the overall general protection, security, and safety of the persons of concern. These actions are executed in collaboration with the United Nations (UN), the African Union (AU), and developed countries that provide technical and financial support. It is through the delivery of these actions that Rwanda lawfully contributes towards solving global immigration issues. For instance, Rwanda has been hosting refugees from neighbouring countries. Today, the country is home to 134,519 refugees and asylum seekers mainly from the Democratic Republic of the Congo (DRC) and Burundi.[3] The majority of these refugees have been settled in six refugee camps located throughout different parts of Rwanda as well as accommodation in urban areas of the country.[4] Rwanda’s Ministry in Charge of Emergency Management (MINEMA), in collaboration with the United Nations High Commissioner for Refugees (UNHCR), is responsible for the smooth delivery of multi-sector assistance to refugees residing in refugee camps and reception centres, as well as to refugees and asylum seekers living in urban areas. Rwanda is also a temporary host for refugees being evacuated from Libya. There has been a desperate situation unfolding in the country involving thousands of migrants and refugees languishing in detention centres or enduring homelessness, exploitation, and abuse while trapped in an endless cycle of violence.[5] In response, the Government of Rwanda, UNHCR, and the AU signed a Memorandum of Understanding (MoU) in September 2019 to set up a transit mechanism for evacuating refugees out of Libya.[6] Under this MoU, the Government of Rwanda agreed to receive and provide protection to 500 refugees and asylum-seekers who were being held in detention centres in Libya and willingly choose to be transferred to safety in Rwanda. The aim of this action is to temporarily host refugees and asylum seekers who have undertaken voluntary evacuation from Libya with a view that some evacuees would benefit from resettlement to third countries, while others would be helped to return to countries where asylum had previously been granted, or to return to their home countries if it was safe to do so.[7] Some would be given permission to remain in Rwanda subject to agreement by the competent authorities. Two Emergency Transit Mechanism (ETMs) were established in Rwanda to support the agreed number of refugees and asylum seekers evacuated from Libya at any given time and to conduct case processing for resettlement and other durable solutions. While in the ETM, the asylum seekers go through refugee case processing undertaken by UNHCR to determine if they are a refugee.[8] In October 2021, the first Addendum to the tripartite MoU of September 2019 was signed by the parties, agreeing to renew and extend the MoU until December 2023 and to increase the total number of individuals to be hosted in the centre to 700 people at any given time.[9] According to UNHCR, between September 2019 and March 2023, 1600 refugees and asylum seekers were evacuated from Libya to the ETM in Rwanda by way of 13 evacuation flights.[10] The refugees and asylum seekers consist of mainly Eritrean, Somali, Sudanese, Ethiopian, South Sudanese, Cameroonian, Nigerian, and Chadian nationalities. To date, all refugees have opted not to stay in Rwanda but for resettlement to third countries. Over 900 refugees have subsequently been resettled to third countries. Currently, the ETM is hosting 698 refugees and asylum seekers.[11] The European Union has been the main funding partner to UNHCR for the operation of the ETM in Rwanda—between 2019 and 2022, the EU donated €12 million to the project.[12] The EU granted to the UNHCR an additional €22 million in February 2023 to support its operation of the ETM in Rwanda until 2016.[13] Prior to signing an arrangement for evacuation of refugees from Libya to Rwanda with the country’s government, the UNHCR had been involved in similar schemes with other countries. In May 2008, a tri-partite agreement establishing the Emergency Transit Centre (ETC) in Romania was signed by the Government of Romania, the International Organisation for Migration (IOM) and UNHCR.[14] In November 2017, UNHCR had established for the first time an ETM for the evacuation of vulnerable refugees and asylum seekers from detention in Libya to Niger and signed a MOU with the Government of Niger in December 2017 to temporarily expanding the Niger asylum space to these refugees and asylum seekers.[15] The UNHCR schemes with Romania, Niger and Rwanda that evacuate refugees from Libya are certainly reasonable because they protect migrants from torture, sexual violence, and indefinite detention. However, this is not the case with the Rwanda asylum plan between the UK and Rwanda. Rwanda also deploys troops in peacekeeping missions across the world. By doing so, Rwanda contributes towards addressing threats to international peace and security, an action that is connected to rightly solving global immigration issues. In that context, Rwanda has deployed its military and police personnel on UN peacekeeping missions in Darfur (completed in 2020), the Republic of South Sudan, the Central African Republic, and the Interim Security force for Abyei. Rwanda is today ranked the fourth-most country contributing personnel to UN peacekeeping operations.[16] Rwanda has also entered into bilateral agreements with individual states which have led to additional deployments of its defence forces and police personnel into those countries to ensure security and peace. This was the case during the deployment of Rwanda defence forces and national police to Cabo Delgado, a province of Mozambique affected by terrorism and insecurity. The Rwandan force protection troops were also deployed to the Central African Republic to counter the targeting of the UN peacekeeping forces by rebels. I commend the Rwandan government for the aforementioned actions, as they demonstrate that in spite of Rwanda being categorised as a poor and least developed state, it is certainly making a major contribution towards solving global immigration issues. Of course, more can be done to fulfil Rwanda’s commitment to protecting vulnerable people around the world. However, this is not to be rightfully done currently because the scheme to transfer asylum seekers from the UK to Rwanda is not lawful. Rwanda Policy is Unlawful Just a few months after the MOU between the UK and Rwanda was signed by both countries’ officials, UNCHR, pursuant to its responsibility under the United Nations General Assembly to ensure the promotion and supervision of compliance with international refugee law, published a note that summarizes its views on the legality and appropriateness of partnership on the asylum transfer between the governments of the UK and Rwanda.[17] The UN agency made the note with reference to international refugee law norms and principles, as articulated notably in the 2013 UNHCR Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers and UNHCR’s 2021 Note on the ‘Externalization’ of International Protection. In its note, the UNHCR explained that although States may make arrangements with other States to ensure international protection, these arrangements must—as the preamble of 1951 Convection provides—advance international cooperation to uphold refugee protection, enhance responsibility sharing and be consistent with fundamental rights and freedoms of asylum seekers and refugees. International law requires States to fulfil their treaty obligations in good faith. However, the UK and Rwanda arrangement does not advance international cooperation that would uphold any protection to refugees who would be transferred under the scheme. The MoU on the arrangement[18] clearly states that it will not be binding in international law[19] and does not create or confer any right on any individual, nor shall compliance with it be justiciable in any court of law by third-parties or individuals.[20] It also stipulates that in case of disputes[21] the participants will make all reasonable efforts to resolve between them all disputes concerning the arrangement. Neither participant will have recourse to a dispute resolution body outside of this. The absence of regularising the MoU raises questions on the protection of asylum that will be transferred under the partnership if, for unforeseeable reasons, the partnership suddenly ends. Moreover, the arrangement between the two states does not contribute to burden-sharing and responsibility-sharing and puts the asylum seekers transferred from UK to Rwanda at risk of refoulement. The UNCHR’s assessment of the Rwandan asylum system is that the system is still nascent, while the UK asylum system is highly developed and has the capacity to consider asylum claims. This renders the arrangement as not promoting responsibility-sharing between the two states but simply shifting the burden from the UK to Rwanda, which is not in line with the 1951 convention. The UNHCR had submitted shortcomings in the Rwandan asylum system to the Universal Periodic Review in July 2020.[22] Among these flaws include the inefficiency and untimely manner of asylum procedures, lack of objective assessment of the fairness and efficiency of the asylum procedures, lack of representation by a lawyer for asylum seekers, arbitrary denial of access to asylum by Rwanda’s Directorate General for Immigration and Emigration, discrimination in access to the asylum procedures for groups such as LGBTQ+ persons and so on. These shortcomings have resulted in those wishing to claim asylum in Rwanda being left undocumented, at risk of detention and deportation and produced incidents of chain refoulement. The flaws in the Rwandan national asylum system represent a challenge to the legality of the UK-Rwanda transfer; for any arrangement to transfer asylum to be deemed legal, it must ensure that access to fair and efficient procedures for the determination of refugee status is guaranteed. The UNHCR explains that the legality of transfer arrangements also requires those transferred to be treated in accordance with accepted international standards. These requirements reflect the rights granted to refugees under the 1951 Refugee Convention. Concerns over whether refugees transferred to Rwanda will be treated in accordance with respected international standards are considerable. Rwanda has constituently been categorised as ‘not a free country’ by Freedom House and has a history of and continues to disregard international obligations, including human rights such as those set out in the Convention Against Torture, amongst others. This situation is well-known to the UK government. In January 2021 during the 37th Session of the Universal Periodic Review, while sharing recommendations to improve human rights in Rwanda, the UK Foreign Commonwealth and Development Office expressed its concerns regarding continued restrictions on civil and political rights and media freedom, and urged Rwanda, as a member of the Commonwealth and future Chair-in-Office, to model Commonwealth values of democracy, rule of law, and respect for human rights.[23] The UK tabled recommendations for Rwanda to improve its human rights. However, Rwanda did not support these recommendations. This prompted the UK to issue yet another statement expressing its regrets that Rwanda did not support its recommendations, which was also made by other states, to conduct transparent, credible and independent investigations into allegations of human rights violations including deaths in custody and torture.[24] The UK expressed its disappointment that Rwanda did not support its recommendation to screen, identify and provide support to trafficking victims, including those held in government transit centres in Rwanda. Human rights violations and torture affects anyone in Rwanda who dares to challenge the government’s narrative, including refugees hosted in the country. In 2018, twelve Congolese refugees were shot and killed by Rwandan police as they tried to march out of their camp in protest of a cut in food rations.[25] 65 Congolese refugees were also arrested.[26] Those arrested were accused of causing uprising or unrest among the population, of spreading false information or harmful propaganda with the intent to cause a hostile international opinion against Rwandan Government, and of holding illegal demonstration or public meeting. Only one person was acquitted, whilst the rest were sentenced to three to six years of imprisonment. Lastly, international law requires that transfer arrangements must ensure that when a person being transferred is recognised as being in need of international protection, that person is able to access a durable solution. Yet evidence shows that Rwanda remains a poor and less developed country with limited resources. Rwanda produces its own refugees due to ongoing repression and the lack of economic opportunities. One example of Rwanda’s insufficiency as a third country to transfer asylum is the previous bilateral arrangement between Rwanda and Israel. Unlike UK-Rwanda asylum transfer deal that was publicly announced, the transfer arrangement between Israel and Rwanda was of a secretive nature. Some 4000 Eritrean and Sudanese asylum seekers based in Israel were sent to Rwanda and Uganda between 2013 and 2018. For those asylum seekers sent to Rwanda, testimonies collected by the International Refugee Rights Initiative suggest that the majority, if not all, were being smuggled out of the country by land to Kampala within days of arriving in Kigali.[27] They were not given an opportunity to apply for asylum, and even if they wished to stay in Rwanda, their refugee claims could not be assessed as the national refugee status determination committee has yet to be established. The UNHCR note concluded that the UK-Rwanda arrangement fails to meet the required standards relating to the legality and appropriateness of bilateral or multilateral transfers of asylum-seekers, making it incompatible with the letter and spirit of the 1951 Convention. Furthermore, the note adds that the arrangement cannot be brought into line with international legal obligations through minor adjustments. Although the UK High Court ruled that the arrangement itself is lawful, it added concern that the asylum seekers being transferred to Rwanda were not allowed to argue about the safety of Rwanda. Hence the case was appealed. The Court of Appeal concluded that the deal was unlawful because Rwanda was not a safe third country to send asylum to. The Court noted that Rwanda’s system for making asylum decisions was inadequate.[28] The system has serious deficiencies, and at the date of the hearing in the High Court, those deficiencies had not been corrected and were not likely to be in the short term. The Court of Appeal also stated that asylum seekers transferred to Rwanda would be at risk of refoulment, making Rwanda not a safe third country.[29] The Court established substantial grounds for believing that there is a real risk that the asylum claims may be wrongly refused by Rwanda’s national system. Moreover, it revealed that asylum seekers sent to Rwanda faced a real risk of mistreatment.[30] The Court of Appeal also disagreed with the argument by the UK Secretary of State for the Home Office that the past and the present should either be ignored or sidelined in this case.[31] The Israel-Rwanda agreement is illustrative of the danger and suffering that is likely to arise from the UK’s externalisation plan,[32] and the shooting of Congolese refugees in Rwanda in 2018 has also been considered. The Court was not convinced by the UK Secretary of State for the Home Office’s uncritical acceptance of assurances from Rwanda, or that these assurances are enough to wipe away all real risk of violations while the structural institutions that gave rise to past violations remain in Rwanda today.[33] It is indeed a fact that institutions in Rwanda demonstrate use of violence against citizens and this makes Rwanda not a free country. Anyone who dares to challenge the government’s policies and narratives is persecuted and labelled an enemy of the state intending to destabilise Rwanda. I know this because I, amongst so many others, have experienced it first-hand. Rwanda is Not a Free Country In 1999, several years after the end of a civil war that culminated in the genocide against the Tutsis and crimes against humanity in Rwanda, the Rwandan Patriotic Front (RPF)—the country’s new rulers—held a national dialogue referred to as ‘Urugwiro Village’ meetings to discuss how Rwanda could solve its issues with democracy, amongst other issues. The outcome of these consultations was an agreement that going forward the East African nation should adopt a ‘consensual democracy’. This ‘consensual democracy’ was deemed the best option to supposedly guide the philosophies of governance in Rwanda based on its population, culture, and history in order to accelerate development and to prevent further ethnic violence in the country. However, the ruling party has over time transformed Rwanda’s consensual democracy into a political system that suppresses political dissent, restricts pluralism, and curbs civil liberty in Rwanda. This situation has led Freedom House to consecutively categorise Rwanda as not a free country.[34] Rwanda’s score on the Democracy Index has decreased and remained below global and African countries averages between 2006 and 2022.[35] The Index has consecutively[AMH1] categorised the Rwanda regime as authoritarian. Indeed, a closer look reveals that lack of effective electoral process, pluralism and political participation are the main reasons that Rwanda has been assigned a stunted score. There has been a pattern of restricting political participation in Rwanda, particularly during the periods preceding each Rwandan presidential election, since the RPF took power. The victims have always been members of opposition who do not toe the line of the government’s narrative and who have announced that they would run against the ruling party’s only candidate, President Paul Kagame, in those presidential elections. Amnesty International reported that during and after the first post-genocide presidential election in Rwanda that took place in August 2003, opposition candidates and supporters faced harassment and intimidation.[36] In fact, former Prime Minister Faustin Twagiramungu, who was one of the main presidential candidates against President Paul Kagame, was denied registration of his newly formed party the Alliance for Democracy, Equity and Progress.[37] He was also forced to interrupt his campaign before the presidential election after death threats were made against his aides. The report of the European Parliament Delegation’s observation of the 2003 presidential elections stated that the best-placed opposition figure was eliminated from electoral contest by the invalidation of his candidature before the start of the elections campaign.[38] The report added that this opposition figure was in prison at the time of the report’s publication. Dr Theoneste Niyitegeka, who took care of many people injured in the 1994 genocide, tried to put forward his candidacy but was rejected.[39] Afterwards, he was charged with the crime of genocide and sentenced to 15 years in prison in 2008. International and domestic human rights organizations have claimed the charges against Niyitegeka were politically motivated.[40] Rwanda’s record of human rights abuses were amongst the reasons that the Commonwealth Human Rights Initiative (CHRI) recommended that the 21st Commonwealth Head of Government Meeting, held in Port of Spain, Trinidad and Tobago, in November 2009, should not make a decision about Rwanda’s Commonwealth membership application.[41] In the end, however, the decision was taken to include Rwanda as part of the Commonwealth. I had truly hoped that our government would apply Commonwealth values in its governance, but this did not happen. Persecution of opponents who were in the best position to compete with President Paul Kagame increased once again in the run-up to presidential elections in 2010. Accusations of ‘divisionism’ and ‘genocide ideology’ which were based on vaguely-worded legislation continued to be used to stifle legitimate dissent. Me Bernard Ntaganda was selected by members of the political party he presided over, the Ideal Social Party (PS-Imberakuri), to be their candidate during the 2010 presidential elections in Rwanda.[42] He was arrested on the first day on which presidential candidates could register for the election. In 2011, the High Court in Kigali found Ntaganda guilty of endangering national security, ‘divisionism’—inciting ethnic divisions—and attempting to organize demonstrations without official authorisation. In 2010, I left my husband and our three children and returned to Rwanda from exile in the Netherlands, with the intention of registering my political party and running in Rwanda’s presidential elections later in the same year. On the day of my return to Rwanda, I visited the Kigali Genocide Memorial Centre in Gisozi and gave a speech urging unity and reconciliation. I said that for Rwanda to experience true reconciliation, we need to recognise all crimes committed in Rwanda, including the genocide perpetrated against the Tutsi and the crimes against humanity committed against the Hutu. My opinion was based on United Nations Report S/1994/1405. Three months later, I was arrested and dragged into a politically motivated judiciary process that would include years of solitary confinement, relentless smear campaigns, and a long, painful separation from my family. The then-UK Parliamentary Under Secretary of State for Africa declared that I was arrested on trumped up charges.[43] In 2012, the High Court of Rwanda sentenced me to eight years in prison for ‘conspiring against the government by use of war and terrorism’ and ‘genocide denial’. My speech at the Gisozi Genocide Memorial Centre, where I called for effective reconciliation, was considered evidence of ‘genocide denial’. The European Parliament issued a resolution stating that my trial did not meet international standards and was based on fabricated evidence and confessions from co-accused who had been coerced through torture at military detention to make false confessions against me.[44] The EU strongly condemned the politically motivated nature of my trial. I was never deterred by the biased judgement of the Rwandan court. I appealed the High Court’s decision to the Supreme Court, only for the latter to extend my sentence from eight to 15 years. In 2014, I filed a claim against the Rwandan government to the African Court on Human and Peoples’ Rights (AfCHPR). In 2016, just as the AfCHPR was set to decide on my claim, the government of Rwanda withdrew its declaration enabling individuals to file complaints with the court.[45] Nonetheless, having already reviewed my claim, the AfCHPR concluded in 2017 that the Rwandan government had violated my rights to freedom of expression and adequate defence. The court also ordered the government to reimburse me and my family for the material and moral prejudice I suffered during my prosecution and imprisonment. The government has refused to recognise and has not executed that court order to this day. This situation is an example of where the Rwandan government has failed to honour its international commitment. During the annual conference of African Bar Association held in Nairobi, Kenya in 2018, a resolution on Rwanda was passed urging the Rwandan government to respect orders of the AfCHPR in my case, amongst others.[46] In September 2018, I was released early by presidential pardon after eight years of detention, five of which I spent in solitary confinement. This pardon came with two conditions: I must appear before the primary level prosecutor in my place of residence, must appear at the prosecution office once a month and must seek authorisation from the minister in charge of justice every time I wish to go out of the country. These conditions shall cease to apply at the end of the remaining period of imprisonment, which I was supposed to serve till 2025. Upon my release, I launched the political party Dalfa Umurinzi with a mission to strive for the rule of law and for sustainable development benefiting every Rwandan. Although the constitution provides me with the right to organise a general assembly, I am not permitted to register my political party or to be approved for operation. In 2019, I received an international award from the Association for Human Rights of Spain (APDHE). I could not travel to Spain to collect the prize because I had no right to leave Rwanda without permission from the Minister of Justice. Two requests to do so have received no response from the authorities. I have not seen my family in the Netherlands for more than 10 years. Early this year, I wrote to President Paul Kagame requesting that he withdraw the conditions attached on the early pardon he gave me under humanitarian ground because I would like to travel to the Netherlands and be with my husband who is severely ill. I have yet to receive any response from the President. During the 2023 annual conference of African Bar Association held in South Africa, another resolution was passed reminding the Rwandan government to respect orders of the AfCHPR , including my case. Another presidential candidate, Ms Diane Rwigara, was only 35 years old when she decided to run in the 2017 presidential elections in Rwanda against President Paul Kagame. She was also persecuted, being accused of inciting insurrection and fraudulently obtaining the necessary requirements for her candidacy. She was arrested and detained with her mother for a year. Ms Rwigara and her mother were acquitted of all charges after the presidential election was completed.[47] Persecution in Rwanda is not limited to presidential candidates. Many of my supporters have lost their lives, or disappeared after responding to my call to struggle for the establishment of genuine democracy, respect for human rights and rule of law in our homeland.[48] Today, eight of my supporters are still in prison after acquiring a book and attending an online training session about the philosophy of non-violence.[49] Freedom House has consistently categorised Rwanda as not a free country not only because of the political restrictions, but also the curbing civil liberties. Independent human rights organisations such as Human Rights Watch and Amnesty International have frequently reported that judicial authorities in Rwanda prosecute opposition members, journalists, and commentators on the basis of their speech and opinions. Last year, Human Rights Watch reported that Rwandan authorities have threatened, arrested, or prosecuted people reporting or commenting on current affairs via YouTube. The organisation noted that the judiciary system in Rwanda is lacking the independence to stand up and protect free speech in accordance with international law. Through politically motivated prosecutions, Human Rights Watch has alleged that the judicial authorities in Rwanda perpetuate a culture of intolerance to dissent. Indeed, those kept in detention have said that they are regularly tortured. In June 2022, Human Rights Watch reported that a prominent Rwandan YouTube commentator, Aimable Karasira, accused prison authorities of beating him and other jailed critics.[50] In a statement at a court hearing in Kigali in May 2022, Mr Karasira, held in Nyarugenge prison, also said prison authorities were intercepting and withholding privileged communications from his lawyer. The shooting of 12 Congolese refugees that took place in Rwanda in February 2018, which is used as evidence that asylum seeker transferred from the UK to Rwanda are at risk of ill-treatment, is the result of that same culture of intolerance perpetuated across some institutions in Rwanda. The use of violence to prevent citizens from exercising their rights, and particularly those who dare to challenge the Rwandan government and its narratives, is another example demonstrating Rwanda’s failure to honour its international commitments. This is especially true when looking at its international commitment to respect human rights as a member of the UN Human Rights Council and in ratifying the Convention Against Torture in December 2008. Persistent human rights violations have only reinforced the top-down decision-making approach of the Rwandan regime. Thus, the level of citizen participation remains low and undermines good governance in Rwanda. The Worldwide Governance Indicators database, which independently reports aggregate and individual governance indicators for over 200 countries and territories, has revealed that Rwandan governance largely lacks voice and accountability (the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media). The Ibrahim Index of African Governance (IIAG), an independent tool that measures and monitors governance performance in African countries, also came to a similar conclusion. The most recent IIAG shows that Rwanda governance is mainly affected by low levels of participation, rights, and inclusion in the country. Rwanda’s strategy of placing women in high-level decision-making roles, though commendable, has not spurred participation. This is because, as a 2019 study found, the majority of women in high public responsibility roles are card-carrying members of the ruling party or its coalition partners. This means most women in high official roles owe allegiance to the ruling party, rather than the constituencies that elected them. Hence, they adhere to the ruling party governance methods known for not tolerating criticism and restraining citizen participation.[51] Failure to efficiently involve citizens in the decision-making has prevented the Rwandan government from achieving its development programme and prevented the economic progress made by Rwanda from being inclusive. Rwanda’s Economic Growth Hides Flaws The implementation of a ‘consensual democracy’ as a new political system to direct the governance of Rwanda was not the only outcome of the national consultation held in 1999. The RPF administration also promised to transform Rwanda from a low-income to a middle-income country driven by a knowledge-based economy by 2020. That plan was named the Rwanda Vision 2020 development programme and Rwanda started working towards achieving its targets in 2000. Over the following two decades, the Rwandan government received net official development assistance (ODA) from donor countries and institutions equivalent to 16 billion USD from 2000 to 2018. It has raised roughly 9 billion USD of tax revenue between 2009 and 2019. The government has also borrowed finance from external and domestic markets to the tune of 72.4% of GDP which is equivalent to 7 billion USD as of end 2020. Rwanda has experienced significant growth and has been listed the tenth-fastest growing economy in the world from 2001 to 2010, income per capita increased and so has the human development index of the country.[52] However, this growth has not been inclusive and is marred by inequalities in income, education, and health. Moreover, food insecurity in Rwanda is a challenge. Only 40% of Rwanda households are substantially food secure. Rwanda’s growth has not translated into any considerable poverty reduction, particularly in rural areas. The government has chosen to invest a large segment of public funds into the meetings, incentives, conferences, and exhibitions (MICE) industry, developing the touristic areas of the country, and building impressive infrastructure in the capital, Kigali. These efforts have not translated into increased employment across the country and have provided no benefit to rural communities struggling the most. MICE-related developments suffered a lot due to the pandemic, further limiting the gains made. Now as a result of these and other short-sighted economic strategies, Rwanda stands on debt equivalent to a whopping 73% of its GDP. Despite the praise the Rwandan government has received internationally for advancing the country’s development, Rwanda remains categorised among the poorest and least-developed countries in the world. The government’s promise to transform Rwanda into a middle-income state by 2020 has not been delivered.[53] Rwanda remains a low-income state and is categorised among the poorest and least-developed countries today. The Rwandan government has postponed the target to transforming Rwanda into a middle-income state in 2035. There are no official documents that explains why the government did not achieve the anticipated objectives of Vision 2020, and what needs to be improved so that the government’s future development programmes meet their targets. Instead, the government launched yet another ambitious development programme, called Vision 2050. This one aims to transform Rwanda into an upper middle-income state by 2035 and a high-income state by 2050. Rwandan economic progress has shortcomings, especially in those areas needed to achieve genuine social and economic transformation for the wider population. In my opinion, there are four main areas that Rwanda’s economy has fallen short on. First, Rwanda lags behind in human capital development. Between 2018—the year the Human Capital Index (HCI) was first published—and 2020, Rwanda’s ranking on HCI has been consistently low. The HCI measures which countries are best at mobilising the economic and professional potential of their citizens. In spite of Rwanda having significantly increased the level of school enrolment in Rwanda, its score on the World Bank Human Capital Index 2020 is lower than the average for sub-Saharan Africa.[54] A child born in Rwanda today will grow up to be 38% as productive as they could have been if they had enjoyed high-quality education and healthcare. The reasons behind such a low score are Rwanda’s poor education standard and high rates of malnutrition. It is important to highlight that since 1998, the UK Department for International Development (DFID) has provided over 1 billion GBP in development assistance to Rwanda to develop areas including its agricultural and educational sectors.[55] A persistently low standard of education is among the main reasons that Rwanda struggles to attract private investment. Second, the development of a solid social capital that is genuinely reconciled and united and capable to advance the development of their country is yet to be achieved. This is challenged by the legacy of the history that led to the 1994 genocide against Tutsi and other crimes against humanity committed in Rwanda and the country’s governance since. Many people lack confidence that there has been justice for all the atrocities committed. I have always pointed out that genuine reconciliation will remain elusive until Rwanda honours and remembers all the victims, of all the crimes, committed during that dark period in our country’s history. Each time I called on the Rwandan government to ensure all crimes of our past history are recognised, I am referred as engaging in polarising politics. Ironically, the United States and the United Kingdom, Rwanda’s closest and most influential allies, share the view that failing to honour the many Hutus and others killed during the genocide paints an incomplete picture of this dark chapter in my country’s history. Curiously, they are never accused of being ‘polarising’. The persisting human rights violations reported in Rwanda over the past decades honed by economic injustice such as authorities uprooting farmers crops or engaging in unfair land expropriations have contributed to social capital depletion in Rwanda. This has increased citizens’ distrust of government institutions and officials. Thus, Rwanda has consecutively ranked among the five nations with the least-happiest populations on the World Happiness index. According to findings of the African Youth Survey 2022, the optimism about the direction of Rwanda of Rwandan youth aged between 18 and 24 has significantly declined from 94% in 2019 to 60% in 2022.[56] Third, the lack of citizen participation in decision making remain low in Rwanda. The power remains with the executive in Rwanda. Human rights organisations have established that Rwanda’s judiciary system is influenced by the executive as in many occasions it has delivered politically motivated judgments. Rwanda has experienced sudden and rapid decline of its performance on index of economic freedom over the past four years due to, among other reasons, the lack of judicial effectiveness. Rwanda moved from being the 2nd freest economy in Sub-Saharan Africa and the 32nd freest in the world in 2019, with a score of 71, to the 30th freest economy in Sub-Saharan Africa and the 137th freest in the world in 2023, with a score of 52.[57] The Parliament that is supposedly to speak on behalf of the people is made of members from the ruling party and from opposition parties affiliated to it. Thus, citizens in Rwanda lack ability to hold their policymakers accountable and this has been an obstacle to development. While Rwanda scores above the sub-Saharan African average for ‘control of corruption’ and ‘government effectiveness’ in the Worldwide Governance Indicators, it falls well below the average for ‘voice and accountability’. Policies are typically implemented with little input from citizens and often lack sensitivity to the population’s wants and needs. This top-down approach not only means that people may be not satisfied with government policies, but the stifling of dissenting voices also means those policies are less likely to be effective and well-designed. For decades, there have not been independent opposition political parties in the country capable of providing checks and balances to the government’s decisions and accountability. The lessons in history teach us that Rwanda is highly unlikely to transition to a modern and competitive middle-income country without developing highly capable and genuinely accountable institutions. Finally, Rwanda’s relationship with its neighbouring states have been deteriorating. This has prevented Rwanda from maximising its potential in the region for the development of its economy. The strained relations arise from the Rwandan government often alleging that its neighbouring states are supporting forces made up of Rwandan refugees that want to topple its leadership by force. Moreover, some of these neighbouring states have accused Rwanda of meddling into their internal affairs. The situation has been creating regional political tensions and have prevented Rwanda from efficiently integrating in the region for the development of its citizens, for example transparently being part of the supply chain of the region’s natural resources. Taking into consideration the flaws in the economy of Rwanda, how would migrants, who may have suffered psychological trauma fare in such an environment, and in a country that is still rebuilding itself? In fact, Rwandans are fleeing Rwanda to seek refugee abroad due to both political and economic reasons. Rwanda Produces Refugees Rwanda itself creates thousands of refugees every year, and its government has yet to guarantee a safe environment for Rwandan refugees settled across the world to return home. According to UNHCR, in 2021 alone, 12838 Rwandans fled the country and applied for asylum elsewhere. This tragic trend did not start recently. Rwanda has been producing refugees in significant numbers since before the country’s independence in 1962. The Rwandan Revolution of 1959, for example, pushed some 300,000 Rwandans into exile in neighbouring Tanzania, Burundi, the Democratic Republic of the Congo (then Zaïre), and Uganda. Just over a decade later, in 1973, a coup d’état caused an additional 40,000 to flee the country. In 1990, the RPF, the armed group made up of the descendants of those who fled the country in the wake of the 1959 revolution, launched an attack on Rwanda seeking to restore democracy and human rights in the country and facilitate the return of refugees to Rwanda. That war increased the number of refugees living in neighbouring countries to at least 600,000. The RPF eventually defeated the government forces and assumed control of Rwanda. But the civil war culminated in the genocide against the Tutsi and pushed about 1.75 million additional Rwandans to seek refuge in neighbouring countries. Approximately 700,000 Rwandan refugees (the majority being those who had fled Rwanda during the 1959 revolution including their children born in exile) returned to Rwanda. The RPF administration led by Kagame was determined to bring all Rwandan refugees home, using soft or hard power—at any cost. In 1996, as part of the Alliance of Democratic Forces for the Liberation of Congo (AFDL) coalition, the Rwandan army invaded the DRC and fought the Rwandan forces that had sought refuge there after the 1994 genocide. During that conflict, the camps that were hosting Rwandan refugees were directly attacked and the UN reported that thousands of Rwandan refugees and Congolese nationals were killed in the process.[58] Close to 750000 Rwandan refugees returned to Rwanda as a result of this conflict.[59] Some of the survivors still live in the DRC, while others have managed to flee to countries in Southern Africa and outside the African continent. They all carry with them horrific memories of state violence. Moreover, the Rwandan government also sought to bring refugees home by signing voluntary repatriation agreements with the governments of African states hosting Rwandan refugees. The Rwandan government also convinced the UN to end the refugee status of Rwandans who had left the country before November 1998. Despite all these efforts, the number of Rwandan refugees in Africa and beyond remains concerningly high. According to the most recent figures by the UNHCR, there are still more than 250,000 Rwandan refugees across the world. There are compelling reasons why so many Rwandan refugees do not want to—or do not feel safe enough to—return to their motherland. The devastating memories of the civil war, the genocide against Tutsi and the killing of refugees in the DRC by government forces are still fresh in the minds of many Rwandan refugees and in the absence of a comprehensive reconciliation policy, they have little reason to want to return to Rwanda. Moreover, persistent poverty and deep inequality, coupled with widespread political persecution and oppression, has not only discouraged the return of existing refugees but is pushing more Rwandans to leave the country and seek safety elsewhere. The failure of the Rwandan government to guarantee a safe environment for Rwandan refugees settled across the world to return home has been a source of instability in the African Great Lakes region. Among the refugees that fled Rwanda to seek refuge in the Democratic Republic of Congo after the RPF army took power in 1994, were the remnants of defeated Rwanda forces and militia responsible for the genocide. Since then, the Rwandan government has maintained that there are negative forces resident in eastern DRC who are set out to destabilise Rwanda, especially the Democratic Forces for the Liberation of Rwanda (FDLR). The FDLR is an armed group formed by Rwandan refugees in DRC who, following their forcible eviction from Rwanda during the genocide, resorted to armed struggle as a means to retake power in Rwanda. Despite Rwanda’s armed forces and militia having launched military operations in collaboration with the Congolese army against the FDLR on numerous occasions, the Rwandan government still insists that the FDLR is a threat to Rwanda’s security. In addition, there are other Rwandan refugees who have been grouped into political parties that oppose the ruling party and agitate for a voluntary and safe return to their motherland so they can exercise political rights without any restrictions. These political parties have members in many parts of the world, including Europe, America, and Africa. The Rwandan government claims these political groups are linked to armed dissident groups in the eastern DRC, or that the groups’ members are genocidaire . There have been political tensions between Rwanda with its neighbouring countries over allegations that these states are supporting Rwanda refugee opposition figures who want to overthrow the Rwandan leadership. In 2016, the UN Security Council accused Rwanda of recruiting and training Burundian refugees with the goal of ousting Burundi’s then-President.[60] Moreover, in 2012 and again in 2022, the United Nations went to the extent of alleging Rwanda’s support for M23, an armed group that is fighting in the eastern DRC.[61] This conflict caused by the M23 has displaced and led to the death of millions of African civilians. Development partners of Rwanda, including the UK, have had to suspend and withhold their aid to Rwanda over the allegations that Rwanda supported the M23 in 2012.[62] Recently the United States has publicly called on the Rwandan government to cease supporting M23 and to remove its troops from the eastern DRC.[63] The European Union and United States have also sanctioned Rwandan military officials for backing the M23.[64] Moreover, The United States has placed Rwanda on the Child Soldiers Prevention Act List and suspended its military aid with the country due to Rwanda’s support of M23, an armed group that the United States says recruits and uses child soldiers.[65] Inter-Rwandan Dialogue: A Solution for Rwanda On 1 July 2021, the 58th anniversary of Rwanda independence, Maître Bernard Ntaganda and I announced that we had submitted to the Rwandan government a Road Map for a promising future of Rwanda.[66] The proposal was made to address the Rwandan refugee problem as well as the roots cause leading to Rwanda repeatedly being categorised as ‘not a free country’ under an authoritarian regime, where political spaces are restricted and human rights are violated. This regime has been alleged by the UN and its development partners to support armed group that have been creating instability in the east of DRC. The promise of a ‘consensual democracy’, reconciliation, and transformation of Rwanda into a middle-income state made by the RPF during the national dialogue in 1999 has not been delivered. Our suggestions argued that domestic governance reform is the single most vital aspect of setting Rwanda on the course it desires. Hence, we proposed that Rwanda hold another inter-Rwandan dialogue between the government, political opposition parties, and civil society organisations internally and externally. The purpose is for these stakeholders to agree on governance reforms that need to be adopted to ensure the political inclusion, respect for human rights and the rule of law, and guaranteeing an environment for a safe and voluntary return of all Rwandan refugees in a dignified manner to their motherland. Why dialogue? The history of Rwanda since its independence has been characterised by successive regimes that have stayed in power by any means possible. The repercussions of this have been massacres and human rights violations, culminating in the 1994 genocide and crimes against humanity. To prevent history from repeating itself, an intra Rwandan dialogue for governance reform is a necessity today. This opening of discussion and inclusivity would help create an environment that could facilitate stability and the sustainable economic development in Rwanda and Great Lakes region that would be in everyone’s shared interests. Our proposal has strong alignment with Rwandan law. Seeking solutions to country’s problem through dialogue is enshrined in the constitution of Rwanda. Moreover, it is in line with the United Nations’ strategy for peacebuilding, conflict prevention, and resolution in the Great Lakes region, adopted in December 2020.[67] This strategy promotes the use of dialogue across region to reach its objectives. The outcomes of the proposed dialogue will not only shift Rwanda towards embracing Commonwealth values, but will also contribute to consolidating peace in the African Great Lakes region. This will also enable Rwanda to be at peace with neighbouring states, efficiently integrate in the region and be part of the transparent supply chain of the region’s natural resources for the development of its citizens. Thus, instead of the UK government partnering with the Rwandan government on an asylum transfer scheme, it should support Rwanda towards resetting its governance so that it embraces Commonwealth value, enabling it finally become a free and democratic country. The UK should utilise its voice and global influence to advocate and endorse resolutions that call Rwanda’s leadership to reform its governance through the aforementioned dialogue. By doing so, the UK would have contributed towards creating secure social, economic, and political environment in Rwanda which can pave the way for fruitful long-term partnership between the two countries. Victoire Ingabire Umuhoza Victoire Ingabire Umuhoza is a Rwandan political figure who champions the establishment of genuine democracy, respect for human rights, and rule of law in Rwanda. In 2010, Victoire returned to Rwanda from exile in The Netherlands to run for presidential candi date but was arrested and sentenced to 15 years in prison by the Rwandan Supreme court in a politically motivated judicial proceeding. Her appeal to The African Court on Human and Peoples' Rights cleared her and held that Rwanda violated her rights to freedom of expression as well as to adequate defence. Victoire was released in 2018 by presidential grace after eight years of imprisonment, five of which she spent in isolated confinement. She has founded and is chairing the Development and Liberty for All (DALFA-Umurinzi) political party. Her party is yet to be registered in Rwanda. It strives for the rule of law and sustainable development that benefits every Rwandan. Since her release she has been advocating for governance reform in Rwanda through holding inclusive dialogue. [1] Home Office and The Rt Hon Priti Patel MP, ‘World first partnership to tackle global migration crisis’ ( Gov.uk , 14 April 2022) < https://www.gov.uk/government/news/world-first-partnership-to-tackle-global-migration-crisis > accessed 13 November 2023. [2] Rwanda Government Communications, ‘Rwanda-UK Migration and Economic Development Partnership’ ( Twitter , 14 April 2022) < https://twitter.com/RwandaOGS/status/1514643560146116617 > accessed 13 November 2023. [3] UNHCR, ‘Operational Update: Rwanda’ ( UNHCR, August 2023) accessed 13 November 2023. [4] UNHCR, ‘Where We Work’ ( UNHCR ) < https://www.unhcr.org/rw/where-we-work > accessed 13 November 2023. [5] Médecins Sans Frontières, ‘Imprisoned, exploited, abused: the horrifying reality for people trapped in Libya’ ( MSF , 20 December 2019) < https://msf.org.uk/article/imprisoned-exploited-abused-horrifying-reality-people-trapped-libya > accessed 13 November 2023. [6] ‘Joint Statement: Government of Rwanda, UNHCR and African Union agree to evacuate refugees out of Libya’ ( UNHCR , 10 September 2019) < https://www.unhcr.org/news/news-releases/joint-statement-government-rwanda-unhcr-and-african-union-agree-evacuate > accessed 13 November 2023. [7] UNHCR, ‘UNHCR Rwanda Factsheet: Emergency Transit Mechanism - February 2023’ ( ReliefWeb , 23 March 2023) < https://reliefweb.int/report/rwanda/unhcr-rwanda-factsheet-emergency-transit-mechanism-february-2023 > accessed 13 November 2023. [8] ibid. [9] UNHCR, ‘The Government of Rwanda, the African Union, and UNHCR agree to continue the evacuation of refugees and asylum seekers from Libya’ ( UNHCR , 1 November 2021) < https://www.unhcr.org/rw/16735-the-government-of-rwanda-the-african-union-and-unhcr-agree-to-continue-the-evacuation-of-refugees-and-asylum-seekers-from-libya.html > accessed 13 November 2023. [10] UNHCR, ‘Evacuees from Libya – Emergency Transit Mechanism’ ( UNHCR ) < https://www.unhcr.org/rw/who-we-help/evacuees-from-libya-emergency-transit-mechanism-centre > accessed 13 November 2023. [11] UNHCR (n 7). [12] ‘Rwanda: the EU provides €10.3 million for life-saving refugee support measures’ ( European Commission , 19 November 2019) < https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6301 > accessed 13 November 2023. [13] ‘European Union increases support to people in need of international protection with additional grant of €22 million to UNHCR to operate the Emergency Transit Mechanism in Rwanda until 2026’ ( UNHCR , 9 February 2023) < https://www.unhcr.org/rw/18777-european-union-increases-support-to-people-in-need-of-international-protection-with-additional-grant-of-e22-million-to-unhcr-to-operate-the-emergency-transit-mechanism-in-rwanda-until-2026.html > accessed 13 November 2023. [14] UNHCR, ‘Emergency Transit Centre Overview’ ( UNHCR , 2021) < https://www.unhcr.org/ro/wp-content/uploads/sites/23/2021/01/ETC-Fact-Sheet-January-2021-Final.pdf > accessed 13 November 2023. [15] UNHCR, ‘UNHCR Niger Factsheet: Emergency Transit Mechanism (ETM) - November 2020’ ( ReliefWeb , 5 November 2020) < https://reliefweb.int/report/niger/unhcr-niger-factsheet-emergency-transit-mechanism-etm-november-2020 > accessed 13 November 2023. [16] ‘Uniformed Personnel Contributing Countries by Ranking’ ( UN , 31 July 2023) < https://peacekeeping.un.org/sites/default/files/02_country_ranking_64_july_2023.pdf > accessed 13 November 2023. [17] UNHCR, ‘UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum Seekers under the UK-Rwanda arrangement’ ( UNHCR , 8 June 2022) < https://www.unhcr.org/uk/media/unhcr-analysis-legality-and-appropriateness-transfer-asylum-seekers-under-uk-rwanda > accessed 13 November 2023. [18] ‘Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement’ ( Gov.uk , 6 April 2023) < https://www.gov.uk/government/publications/memorandum-of-understanding-mou-between-the-uk-and-rwanda/memorandum-of-understanding-between-the-government-of-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-government-of-the-republic-of-r > accessed 13 November 2023. [19] ibid provision 1.6. [20] ibid provision 2.2. [21] ibid provision 22.1. [22] UNHCR, ‘Rwanda: UNHCR Submission for the Universal Periodic Review - Rwanda - UPR 37th Session (2021)’ ( refworld , July 2020) < https://www.refworld.org/docid/607763c64.html > accessed 13 November 2023. [23] Foreign, Commonwealth & Development Office and Julian Braithwaite, ‘37th Universal Periodic Review: UK statement on Rwanda’ ( Gov.uk , 25 January 2021) < https://www.gov.uk/government/speeches/37th-universal-periodic-review-uk-statement-on-rwanda > accessed 13 November 2023. [24] Foreign, Commonwealth & Development Office and Rita French, ‘UN Human Rights Council: Universal Periodic Review Adoption – Rwanda’ ( Gov.uk , 8 July 2021) < https://www.gov.uk/government/speeches/un-human-rights-council-universal-periodic-review-adoption-rwanda > accessed 13 November 2023. [25] ‘Rwanda: A Year On, No Justice for Refugee Killings’ ( Human Rights Watch , 23 February 2019) < https://www.hrw.org/news/2019/02/23/rwanda-year-no-justice-refugee-killings > accessed 13 November 2023. [26] Kerry Jabo, ‘Congolese Refugees Tell Court Rwanda Government Is Not Revealing Real Reason For Their Prosecution’ ( The Chronicles , 25 October 2019) < https://www.chronicles.rw/2019/10/25/congolese-refugees-tell-court-rwanda-government-is-not-revealing-real-reason-for-their-prosecution/ > accessed 13 November 2023. [27] International Refugee Rights Initiative, ‘“I was left with nothing”: “Voluntary” departures of asylum seekers from Israel to Rwanda and Uganda’ ( refworld , September 2015) < https://www.refworld.org/country,,IRRI,,RWA,,55ee8c3a4,0.html > accessed 13 November 2023. [28] R (AAA) and others v. The Secretary of State for the Home Department [2023] EWCA Civ 745 [272]. [29] ibid [273]. [30] ibid [92]. [31] ibid [91]. [32] ibid [101]. [33] ibid [104]. [34] ‘Rwanda’ ( Freedom House , 2023) < https://freedomhouse.org/country/rwanda/freedom-world/2023 > accessed 13 November 2023. [35] ‘Democracy Index 2022’ ( Economist Intelligence ) < https://www.eiu.com/n/campaigns/democracy-index-2022/ > accessed 13 November 2023. [36] ‘Rwanda: Setting the Scene for Elections: Two Decades of Silencing Dissent in Rwanda’ ( Amnesty International , 7 July 2017) < https://www.amnesty.org/ar/documents/afr47/6585/2017/en/ > accessed 13 November 2023. [37] ‘Elections in Rwanda’ ( Amnesty International , 5 September 2017) < https://www.amnesty.org/en/latest/campaigns/2017/09/rwandas-repressive-tactics-silence-dissent-before-elections/ > accessed 13 November 2023. [38] European Parliament, ‘Report: Ad-hoc delegation to observe the presidential election in Rwanda on Monday 25 August 2003’ ( European Parliament , 5 September 2003) < https://www.europarl.europa.eu/cmsdata/212731/Election_report_Rwanda_25_August_2003.pdf > accessed 13 November 2023. [39] ‘Rwanda: Review Doctor’s Genocide Conviction’ ( Human Rights Watch , 15 February 2008) < https://www.hrw.org/news/2008/02/15/rwanda-review-doctors-genocide-conviction > accessed 13 November 2023. [40] United States Department of State, ‘Rwanda 2015 Human Rights Report’ < https://rw.usembassy.gov/wp-content/uploads/sites/147/2016/08/252929.pdf > accessed 13 November 2023. [41] CHRI, ‘Rwanda’s Application for Membership of the Commonwealth: Report and Recommendations of the Commonwealth Human Rights Initiative’ ( Human Rights Initiative , 2009) < https://www.humanrightsinitiative.org/download/Rwanda%20application%20for%20membership.pdf > accessed 13 November 2023. [42] ‘Rwanda: Prison Term for Opposition Leader’ ( Human Rights Watch , 11 February 2011) < https://www.hrw.org/news/2011/02/11/rwanda-prison-term-opposition-leader > accessed 13 November 2023. [43] ‘National Election Commission (Rwanda)’ ( Hansard , 6 July 2010) < https://hansard.parliament.uk/Commons/2010-07-06/debates/10070631000015/NationalElectionCommission(Rwanda)#contribution-10070631000072 > accessed 13 November 2023. [44] European Parliament, ‘MOTION FOR A RESOLUTION on Rwanda: the case of Victoire Ingabire’ ( European Parliament , 4 October 2016) < https://www.europarl.europa.eu/doceo/document/B-8-2016-1075_EN.html > accessed 13 November 2023. [45] ‘Dispatches: Rwanda Turns the Clock Back on Access to Justice’ ( Human Rights Watch , 11 March 2016) < https://www.hrw.org/news/2016/03/11/dispatches-rwanda-turns-clock-back-access-justice > accessed 13 November 2023. [46] ’2018 Annual Conference of the African Bar Association: Resolutions on Rwanda’ ( The Rwandan , 6 September 2018) < https://www.therwandan.com/2018-annual-conference-of-the-african-bar-association-resolutions-on-rwanda/ > accessed 13 November 2023. [47] ‘Rwandan police arrest Paul Kagame critic Diane Rwigara’ ( Al Jazeera , 24 September 2017) < https://www.aljazeera.com/news/2017/9/24/rwandan-police-arrest-paul-kagame-critic-diane-rwigara > accessed 13 November 2023. [48] Victoire Ingabire Umuhoza, ‘Rwanda has to investigate killings of opposition members’ ( Al Jazeera , 24 March 2023) < https://www.aljazeera.com/opinions/2023/3/24/rwanda-has-to-investigate-killings-of-opposition-members > accessed 13 November 2023. [49] ‘Rwanda: Crackdown on Opposition, Media Intensifies’ ( Human Rights Watch , 19 October 2021) < https://www.hrw.org/news/2021/10/19/rwanda-crackdown-opposition-media-intensifies > accessed 13 November 2023. [50] ‘Rwanda: Jailed Critic Denounces Torture in Prison’(Human Rights Watch, 13 June 2022) < https://www.hrw.org/news/2022/06/13/rwanda-jailed-critic-denounces-torture-prison > accessed 13 November 2023. [51] Victoire Ingabire Umuhoza, ‘Rwanda shows that it takes more than seats in Parliament to liberate women’ ( Open Democracy , 8 March 2023) < https://www.opendemocracy.net/en/5050/rwanda-women-in-parliament-employment-culture-empowerment/ > accessed 13 November 2023. [52] ‘Africa's impressive growth’ ( The Economist , 6 January 2011) < https://www.economist.com/graphic-detail/2011/01/06/africas-impressive-growth > accessed 13 November 2023. [53] Victoire Ingabire, ‘Rwanda Vision 2020 – Development Programme Scrutiny’ ( DALFA , December 2019) < https://dalfa.org/en/wp-content/uploads/2020/02/Rwanda-vision-2020-development-programme-scrutiny.pdf > accessed 13 November 2023. [54] ‘Rwanda: Human Capital Index 2020’ ( World Bank , October 2020) < https://databankfiles.worldbank.org/public/ddpext_download/hci/HCI_2pager_RWA.pdf?cid=GGH_e_hcpexternal_en_ext > accessed 13 November 2023. [55] ‘UK–Rwanda development partnership summary, July 2023’ ( Gov.uk , 17 July 2023) < https://www.gov.uk/government/publications/uk-rwanda-development-partnership-summary/uk-rwanda-development-partnership-summary-july-2023 > accessed 13 November 2023. [56] ‘African Youth Survey 2022’ (Ichikowitz Family Foundation, 2022) < https://ichikowitzfoundation.com/storage/ays/ays2022.pdf > accessed 13 November 2023. [57] ‘2023 Index of Economic Freedom’ < https://www.heritage.org/index/ > accessed 13 November 2023. [58] ‘DRC: Mapping human rights violations 1993-2003’ (OHCHR, August 2010) < https://www.ohchr.org/en/countries/africa/2010-drc-mapping-report > accessed 13 November 2023. [59] Amnesty International, ‘Rwanda. Protecting their rights: Rwandese refugees in the Great Lakes region’ ( Amnesty International , n. d.) < https://www.amnesty.org/en/wp-content/uploads/2021/09/afr470162004en.pdf > accessed 13 November 2023. [60] Michelle Nichols and Louis Charbonneau, ‘Exclusive: Burundi rebels say trained by Rwandan military - U.N. experts’ ( Reuters , 4 February 2016) < https://www.reuters.com/article/us-burundi-rwanda-un-idUSKCN0VD04K > accessed 13 November 2023. [61] ‘Letter dated 26 June 2012 from the Chair of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council’ ( United Nations Security Council , 27 June 2012) < https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/DRC%20S%202012%20348%20ADD%201.pdf > accessed 13 November 2023; ‘UN experts say Rwanda provided military support to M23 rebels in eastern Congo’ ( France 24 , 4 August 2022) < https://www.france24.com/en/africa/20220804-un-experts-say-rwanda-provided-military-support-to-m23-rebels-in-eastern-congo > accessed 13 November 2023. [62] Liz Ford, ‘UK withholds aid to Rwanda in light of Congo DRC allegations’ Guardian (London, 30 November 2012) < https://www.theguardian.com/global-development/2012/nov/30/uk-withholds-aid-rwanda-congo-drc > accessed 13 November 2023. [63] Matthew Miller, ‘Press Statement: Final Report by UN Group of Experts’ ( US Department of State , 19 June 2023) < https://www.state.gov/final-report-by-un-group-of-experts/ > accessed 13 November 2023. [64] Thomas Fessy, ‘EU Sanctions Congo, Rwanda Army Officers’ ( Human Rights Watch , 30 July 2023) < https://www.hrw.org/news/2023/07/31/eu-sanctions-congo-rwanda-army-officers > accessed 13 November 2023; Nicole Widdersheim, ‘US Sanctions Rights Abusers in Eastern Congo’ ( Human Rights Watch , 28 August 2023) < https://www.hrw.org/news/2023/08/28/us-sanctions-rights-abusers-eastern-congo > accessed 13 November 2023. [65] RFI and David Thompson, ‘Enfants-soldats: les États-Unis restreignent leur coopération militaire avec le Rwanda’ ( RFI , 21 September 2023) < https://www.rfi.fr/fr/afrique/20230921-enfants-soldats-les-etats-unis-restreignent-leur-coop%C3%A9ration-militaire-avec-le-rwanda > accessed 13 November 2023. [66] Victoire Ingabire Umuhoza and Maître Ntaganda Bernard, ‘Road Map for a Promising Future of Rwanda’ ( DALFA , June 2021) < https://dalfa.org/wp-content/uploads/2021/07/ROAD-MAP-FOR-A-PROMISING-FUTURE-OF-RWANDA.pdf > accessed 13 November 2023. [67] ‘UN Strategy for the Great Lakes Region’ ( Office of the Special Envoy for the Great Lakes ) < https://ungreatlakes.unmissions.org/un-strategy-great-lakes-region > accessed 13 November 2023.

I. Introduction Jonathan Sumption—once described by The Guardian  as ‘the brain of Britain’—is a professional historian and former Justice of the Supreme Court of the United Kingdom. [1]  He has published ten books, among them Pilgrimage: An Image of Medieval Religion  (1975), The Albigensian Crusade  (1978), Equality  (1979), five volumes on the Hundred Years War, and Trials of the State: Law and the Decline of Politics  (2019). As a Supreme Court Justice, he delivered the leading judgment in important cases in several areas, including, in the realm of commercial law, Prest v Petrodel Resources Ltd ,[2]  Kelly v Fraser ,[3]  Bilta (UK) Ltd v Nazir (No 2) ,[4] and Bunge SA v Nidera BV .[5] His dissents have also been prominent—notably in Patel v Mirza [6] on illegal contracts. Moreover, Sumption’s judicial production during his tenure at the Supreme Court has been the subject of academic scholarship.[7]  With a following in various Commonwealth countries, his intellectual influence transcends the British Isles. This is apparent from the success of his most recent book, Law in a Time of Crisis ,[8] which sold out in New Zealand, as did a public lecture he gave at the invitation of one of the country’s leading commercial law firms in 2023.   The book, however, is uneven: in some chapters, its insight enriches,[9] while in others—notably where it explores topical issues—its analysis suffers from important gaps. In particular, Sumption is not persuasive in his discussion of historical apologies and judicial diversity. His reasoning in relation to the former rests on defective legal and historical analyses that either entirely omit, or else do not engage adequately with, relevant considerations. His chapter on judicial diversity, for its part, distorts the arguments it grapples with in its favour, seems to ignore the richness of the notion of ‘identity’, and does not take on the (positive) experience of international courts and tribunals where diversity is mandatory. In this article, I use not just law and political science but also literature to challenge several of the factual bases of some of Sumption’s legal or historical contentions, and to bring a more human dimension to the discussion.   II. On apologising for history   Sumption’s analysis of apologies for historical wrongs contains legal gaps, omits relevant historical facts, and fails to address key dimensions. To begin with, he regards historical apologies as pointless where the perpetrators or their victims are long dead—considering them to be an expression of seeing ‘the past in terms of the present’,[10] and adding that ‘apologising for the past is […] a historical anachronism’. [11] Sumption questions Tony Blair’s apology to Ireland for the Potato Famine. He asserts that the apology ‘seeks to engage [his] moral responsibility’ but that, although he is a descendant of nineteenth-century English people, he ‘did not do it’.[12] He also discusses an apology by Pope John Paul II in 2000 for the Christian wars and persecution in the Middle Ages. With approval, he references a bishop who queried in whose name the Pope was asking for forgiveness.[13] He concludes:   History is morally neutral. We have a duty to understand why things happened as they did, but apologising for them or trying to efface them is morally worthless […]. Once the relevant actors have left the scene, there is no longer a live moral issue, no longer a perpetrator to be contrite or a victim to forgive. For those left behind, there are only lessons to be learned.[14]   The issue of historical apologies can, however, be approached from a different angle. Underlying Sumption’s opposition lies a clear separation between the distant past and the present. Literature offers another perspective, one that challenges such a simplistic separation. Jorge Luis Borges reminds us—and this of course would not come as a revelation for Sumption—that the past can also be part of the present and of the future.[15] Indeed, historical apologies are situated in a present-day political context that is relevant to any assessment of them. This is readily identifiable in the Pope’s 2000 apology. In his words:   Christians have at times given in to intolerance and have not been faithful to the great commandment of love, sullying in their way the face of the church.[16] The Pope was using the apology to send an unequivocal message of tolerance to the Catholics of the day. Blair’s apology had perhaps more profound consequences for the present, having been issued to forge a path for the future: the negotiations that led to the Good Friday Agreements. [17]    Equally fundamentally, Sumption’s argument that historical apologies are morally and philosophically irrelevant fails to take into account the possibility that recipients might not consider the apologies to be as insignificant as he does. Sumption omits to mention, for instance, that Ireland regarded the apology as a significant event, not a moral or philosophical anachronism. Its Prime Minister expressed that ‘while the statement confronts the past honestly, it does so in a way that heals for the future’.[18]   Sumption does not address another key dimension with potential legal consequences: historical apologies, such as those of the Pope and Blair, are unilateral declarations made by heads of State or heads of government, and they seek to have international effects of various kinds. They may or may not contain international obligations, depending on their content and the surrounding circumstances—as the International Law Commission has expressed,[19] and as the International Court of Justice (ICJ) stated in Nuclear Tests Case (New Zealand v France). [20]   Other important considerations applicable to apologies were highlighted by the ICJ in Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) ,   where it expressed the view that:   [A]mong the legal effects which such declarations may have is that they may be regarded as evidence of the truth of facts, as evidence that such facts are attributable to the States the authorities of which are the authors of these declarations and, to a lesser extent, as evidence for the legal qualification of these facts.[21]   Historical apologies are acts of State. By reducing them to leaders’ personal words on behalf of existing individuals, Sumption overlooks a significant dimension of this form of State action.   There is one circumstance militating against apologies that could in principle be open to discussion: when the apology is requested from a State that did not actually exist at the time of the events. In this context, Sumption mentions as futile the request to Turkey to apologise for the Armenian genocide by the Ottoman Empire.[22] Before concluding that an apology by Turkey is irrelevant, however, Sumption should have engaged with the international law concept of State continuity.[23] A rigorous analysis should show why, legally, Turkey is not the continuing legal personality of the Ottoman Empire and therefore does not have to offer any apology. Moreover, Sumption omits to mention material historical facts, such as the fact that many States refused to recognise Turkey’s claim to be a new State in 1923 in order to avoid payment of the Empire’s debts,[24] and furthermore that an arbitration tribunal in Affaire de la dette publique ottoman  rendered an award in 1948 concluding that Turkey had continued the legal personality of the Empire.[25] Sumption should have engaged with these acts and decisions in order to properly prove his point that the example of the Armenian genocide supports his critique of apologies.[26] As it is, his argument is incomplete.[27]    On the request for apologies for slavery, Sumption states:   [t]he suggestion is that the apology is due to the dispersed descendants of the original slaves who are alive today. It is not obvious what injury has been done to them. Many of them enjoy better lives in the countries to which their ancestors were forcibly deported than they would have enjoyed if their families had remained in sub-Saharan Africa.[28]   This last argument can be challenged with the aid of literature and history. First, the benefits of slavery are still enjoyed by the descendants of slaveowners, such that historical domination and subjugation continue to influence contemporary relationships and identity. The legacy of slavery and the need for apologies therefore remains extant.[29] Second, the claim that the descendants of enslaved people enjoy better lives than the inhabitants of Sub-Saharan Africa is trite. A similar argument was made over a century ago to attempt to defend slavery. In a letter sent to the American publication The Atlantic  in 1901, a reader stated that slavery had lifted ‘the Southern negro to a plane of civilization never before attained by any large body of his race’.[30] The argument was wrong then just as it is today. Third, the comparator to assess the negative impact of slavery should not be the standard of living in the African region, but that of fellow citizens. In ‘ Letter from a Birmingham Jail’, Martin Luther King contrasted the quality of life of the African American population with that of the other Americans to decry:   We have waited for more than 340 years for our constitutional and God given rights. [...] [P]erhaps it is easy for those who have never felt the stinging darts of segregation to say, ‘Wait’. But when […] you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; […] when you are forever fighting a degenerating sense of ‘nobodiness’—then you will understand why we find it difficult to wait.[31]   Sumption shuts his eyes to the reality of many descendants of enslaved people. He proposes a regression in how we reckon with history. Granted, slavery ended, but Sumption fails to recognise the subsequent segregation or apartheid, the discrimination replacing slavery until today in many countries, the United Kingdom included.[32] Although Sumption states that he is aware of the Black Lives Matter movement,[33] his arguments betray his disconnection with the reality on race. In sum, Sumption’s views on apologies are based on incomplete legal and historical analyses in which important dimensions are not explored in depth or are simply neglected. Literature reveals not only his blinkered reasoning, but also its wilful blindness.   III. Sumption on judicial diversity   Sumption tackles judicial diversity in British courts based on his five-year experience as a member of the United Kingdom’s Judicial Appointments Commission. He is in favour of more diversity,[34] but finds that the speed of progress is not fast enough. The only way to increase diversity is, he maintains, through positive discrimination. But he is against the latter nonetheless.[35] And under Sumption’s own proposals, meaningful change be witnessed only after decades.   This discussion will explore some of the misconceptions that lead Sumption to conclude that progress in judicial diversity should be left to come about naturally. To begin with, Sumption seems to distort the argument in favour of judicial diversity by contending that those in favour of it expect all minority groups to be represented on the bench. He states:   [I]f personal experience of belonging to a relevant group is desirable, there will be many relevant groups apart from women and ethnic minorities who are entitled to be represented […] Should we distinguish between ethnic minorities according to whether they are of Caribbean, African, Indian or Chinese origin, or between Christian, Muslim and Hindu, all categories with a unique quality of personal experience? […] How far can we go in this direction without undermining the objectivity of the judge, which necessarily depends on certain personal distance from the facts?[36]   The goal of judicial diversity is, however, not to ensure that every minority group will be represented on the bench. This argument is a red herring which, by leading Sumption to portray the goal as unattainable, acts in effect as a tacit call for letting the status quo run its slow course. A true call for diversity is, on the contrary, a call for allowing more minority groups to be represented at a particular time within the judiciary. Once the distortion is brought to light, Sumption’s critique loses its value.   As seen in the above quote, Sumption also challenges judicial diversity on the grounds that judges belonging to minority groups might be unable to distance themselves from plaintiffs or defendants who belong to the same group. Underlying this view is the supposition that members of the same minority groups have only one homogenous life experience and are wholly defined by their belonging to this group. On this point, the Nobel-winning work of Amartya Sen on identity is pertinent:   In our normal lives, we see ourselves as members of a variety of groups-we belong to all of them. A person’s citizenship, residence, geographic origin, gender, class, politics, profession, employment, food habits, sports interests, tastes in music, social commitments, etc., make us members of a variety of groups, to all of which this person simultaneously belongs, gives her a particular identity. None of them can be taken to be the person’s only identity.[37]   Members of social groups have overlapping identities that cut across any single group. Consequently, a judge and an individual before a given court may be part of the same social group but have different identities. For this reason, among others, nobody, and surely not Sumption, questions that white male judges can be objective by virtue of being distanced from the facts in cases related to other white men. Exactly the same happens when it comes to judges from minority groups, and one certainly would expect a former member of a Committee tasked with the goal of increasing judicial diversity to grasp the complexity of identity as a category.   Allegedly, recent empirical scholarship on this topic concerning individual judges appears to support Sumption’s views. Epstein and Knight state that:   research that characterizes individual judges on the basis of their social identity (gender, race, nationality, and so on) tends to generate results in line with in-group bias: the tendency of individuals to favour members of their own group over outsiders.[38]   However, Epstein and Knight acknowledge that this empirical research still lacks the sophistication to conceptualise the judges’ several identities that Sen and others rightly highlight. So far, this research isolates the effects of a specific identity, and Epstein and Knight point out that ‘[r]ecognizing that individual judges are, like all of us, bundles of identities—identities that intersect and overlap—is crucial to advance work in the field’.[39] The research thus has significant conceptual limitations and does not challenge Sen’s perspective.   Sumption objects to the ‘notion that a diverse court produces a higher quality of justice’.[40] He questions the former Canadian Chief Justice, Beverly McLachlin, who, on the benefits of gender diversity for collegial courts, has expressed the following:   Jurists are human beings and, as such, are informed and influenced by their backgrounds, communities and experiences. For cultural, biological, social and historic reasons, women do have different experiences than men. In this respect women can make a unique contribution to the deliberations of our courts. Women are capable of infusing the law with the unique reality of their life.[41]   Sumption argues that this statement attaches an exaggerated value to personal experiences and that vicarious experience may be enough.[42] In doing so, he dismisses the relevance of the so-called diversity bonus in collective decision-making. According to Epstein and Knight:     [S]ocial diversity leads to better decisions as people bring different perspectives to bear on the problem at hand; in other words, the more diverse the inputs, the stronger the outputs.[43]   Although Sumption is discussing judicial diversity in British collegial courts, notably he criticises McLachlin without even considering those courts in which positive discrimination is mandatory and whether the experience of those courts buttresses or contradicts his views. Which are these judicial bodies with mandatory diversity? International courts.   Granted, there are important institutional differences between international and domestic courts, but the differences lose their significance given that Sumption discusses the quality of justice in collegial courts generally. A consideration of international courts in terms of how their diversity has enhanced the quality of their jurisprudence and legitimacy, then, is relevant. Article 9 of the Statute of the ICJ requires that its judges represent the ‘main forms of civilization and the principal legal systems of the world’; Article 17.3 of the World Trade Organization’s Understanding on Rules and Procedures Governing the Settlement of Disputes mandates that ‘ [t]he Appellate Body membership shall be broadly representative of membership in the WTO’; Article 36(8)(a) of the Rome Statute, which goes even further, mandates the composition of the International Criminal Court (ICC) not only in terms of diversity of origin and the representation of the principal legal systems of the world, but also in terms of gender.   Evidence suggests that the ‘diversity bonus’ enhances the quality of the justice delivered by international courts and tribunals. It allows them, to use VS Naipaul’s words, to truly grasp ‘t he lucid, three-dimensional view of the world and its possibilities’ as they relate to the dispute at hand.[44] Indeed, Liliana Obregon shows that non-European or American judges at the ICJ have been a periodic source of challenge to traditional views of international law, thereby enriching the quality of the debate within and outside of the Court on critical issues.[45] From a more general perspective, Hodson illustrates how enhanced gender diversity—through the appointment of more female judges in international courts and tribunals—has brought about important new developments in international criminal law concerning rape and sexual violence and in human rights.[46]   Of course, even a diverse collegial court can make serious mistakes. The ICJ made a major error in South West Africa ( Ethiopia v. South Africa ; Liberia v. South Africa ), Second Phase,[47] when it rejected, for lack of standing, Ethiopia and Liberia’s application against South Africa in relation to the apartheid system put in place in South West Africa.[48] However, adjustments were made, and the quality of the justice delivered by the ICJ is exemplified by its use by applicants from all continents. The ICC was criticised in recent years for concentrating too much on Africa, but this is no longer a valid criticism with the opening of preliminary investigations or full investigations elsewhere.[49] There have been problems within the ICC caused by a low level of collegiality . [50] However, the cause has not been linked to the diversity of the composition. Finally, before becoming inactive, for reasons widely known,[51] the WTO Appellate Body was a significant success in terms of adjudication of complex trade disputes.[52] The Appellate Body is in crisis today, but not for reasons related to its diverse composition.[53]   The relevant point, for the purpose of Sumption’s argument, is that diversity in terms of origin and gender within international courts and tribunals has improved the quality of the justice delivered, and that the failures or shortcomings have never been attributed to their heterogenous composition. Moreover, diversity is one of the sources of the legitimacy of international courts, and when it has been scarce in international adjudication systems, it has been an important source of criticism. Indeed, although international investment agreements and investor-state arbitration are in a process of reassessment for a variety of structural reasons,[54] an additional source of contention is the lack of diversity of the pool of arbitrators available to be appointed by parties.[55] Of course, the proposition that diverse collegial courts do not produce a better justice, or that they reduce its quality, can still be made. However, if it is to be persuasive, it should address the challenge posed by the positive experience of international courts and tribunals where diversity is mandatory. This is a significant gap in Sumption’s argument.   In sum, Sumption’s analysis on judicial diversity is sometimes based on a mischaracterisation of the extent to which diversity can be pursued; it ignores the fact that more diversity does not compromise the impartiality of judges; and it fails to notice that diverse collegial courts, at least in the experience of international courts and tribunals, have enhanced the quality of the justice delivered.   IV. Conclusion   When seen in light of international law, Sumption’s Law in a Time of Crisis falls short. He deals, among other things, with two very topical issues: apologies for historical wrongs, and judicial diversity. The two may be connected sometimes: there is a need to recognise, through apologies, the harm and marginalisation that has suffered by some segments of society, and that one of the instruments to redress it is the recognition of the contribution that these segments can make to their societies—including through judicial diversity. Sumption does not truly embrace both, and his views no longer reflect the directions in which the United Kingdom and other societies are moving. New arguments and experiences have materialised showing the merits of these new directions, and Sumption does not fully address them in his book. From a practical perspective, it can be said that debates on historical apologies and judicial diversity in other jurisdictions—ones in which his views are tacitly relied upon—should be made aware of the limitations of this kind of analysis. Issuing historical apologies and the promotion of diversity in the judiciary are realities not to be feared, but embraced, in multicultural societies still coping with the remnants of colonisation. Alberto Alvarez-Jimenez Alberto Alvarez-Jimenez is a Colombian and Canadian national based in Aotearoa New Zealand. He holds a PhD from Ottawa, an LL.M from McGill and an LL.B from the Universidad de la Sabana. Currently he is a senior lecturer at Te Piringa Faculty of Law at the University of Waikato. His areas of research are international economic law, public international law, and international humanitarian law. He also explores the intersections between international law and art. His scholarship has appeared in leading law journals in North America and Europe. The author wishes to thank Leticia Alvarez and the editors of The Cambridge Journal of Law, Politics, and Art for their comments to early drafts. The usual disclaimer applies. [1] Wendell Steavenson, ‘Jonathan Sumption: the brain of Britain’ The Guardian  (London, 6 August 2015) < https://www.theguardian.com/law/2015/aug/06/jonathan-sumption-brain-of-britain > accessed 16 August 2023 (Sumption received significant attention during the COVID-19 pandemic because of his opposition to the UK government’s lockdowns, a topic I do not explore here.) [2]  [2013] UKSC 34, [2013] 2. [3]  [2012] UKPC 25 [15], [2013] 1 AC 450. [4]  [2015] UKSC 23, [2016] AC 1. [5]  [2015] UKSC 43, [2015] 3 All ER 1082. [6]  [2016] UKSC 42, [2017] AC 467. [7] See e.g. James Lee, ‘The Judicial Individuality of Lord Sumption’ (2017) 40(2) University of New South Wales Law Journal 862; Patrick Birkinshaw, ‘Jonathan Sumption, Trials of the State: Law and the Decline of Politics ’ (2020) 1(3) Amicus Curiae 459. [8] Jonathan Sumption, Law in a Time of Crisis  (Profile Books 2021). See also Jonathan Sumption, ‘Law in a Time of Crisis’ (2021) 1 CJLPA 77-9. [9] Two topics stand out: Sumption’s analysis in ‘Arcana Imperii: State Secrets through the Ages’, which discusses the confidentiality of State documents; and ‘The Historian as a Judge’, wherein Sumption recommends that lawyers enlarge their intellectual horizons. [10] Sumption (n 8) 15. [11] ibid 17-8. [12] ibid 19. [13] ibid 18. [14] ibid 25. [15] In his short story, ‘There are More Things’, Borges writes: ‘Over and over I told myself that time – that infinite web of yesterday, today, the future, forever, never – is the only true enigma’. Jorge Luis Borges, El Libro de Arena  (Emecé Editores 1975) 43. Translation by Leticia Alvarez. [16] Alessandra Stanley, ‘Pope Asks Forgiveness for Errors Of the Church Over 2,000 Years’ New York Times (New York, 13 May 2000) < https://www.nytimes.com/2000/03/13/world/pope-asks-forgiveness-for-errors-of-the-church-over-2000-years.html#:~:text=He%20said%2C%20''We%20are > accessed 16 August 2023. [17] See Jason Edwards and Amber Luckie, ‘British Prime Minister Tony Blair’s Irish Potato Famine Apology’ (2014) 5(1) Journal of Conflictology 43, 48. [18] ibid 47. [19] See Guiding Principle No. 7 in International Law Commission, ‘Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries Thereto’ ( United Nations , 2006) < https://legal.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf > accessed 19 August 2023. [20] See International Court of Justice, Nuclear Tests Case (New Zealand v Francia), Judgment of 20 December 1974   ICJ Reports 1974 [46]-[47]. [21] International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America Merits, Judgment of 27 June 1986, ICJ Reports 1986 [71]. [22] Sumption (n 8) 20. [23] See Andreas Zimmermann, ‘The International Court of Justice and State Succession to Treaties: Avoiding Principled Answers to Questions of Principle’ in Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice  (Oxford University Press 2013) 53. [24] See Patrick Dumberry, ‘The Consequences of Turkey Being the “Continuing’ State of the Ottoman Empire” in Terms of International Responsibility for International Wrongful Acts’   (2014) 14 International Criminal Law Review 261, 267. [25] ibid 268. [26] If the conclusion were that there would be continuity, then an apology, as a form of satisfaction, would be entirely possible pursuant to Article 37 of the International Law Commission’s Articles on State Responsibility for Wrongful Acts. [27] It is also incomplete in another sense that Sumption did not identify: not all Armenians may be interested in an apology from Turkey. In Elif Shafak’s novel The Bastard of Istanbul , the Armenian diaspora in the United States is a prominent theme, and an Armenian Turk character asserts: ‘[I] was born and raised in Istanbul. My family history in this city goes back at least five hundred years. Armenian Istanbulites belong to Istanbul, just like the Turkish, Kurdish, Greek, and Jewish Istanbulites do. We have first managed and then badly failed to live together. We cannot fail again’ (Elif Shafak, The Bastard of Istanbul  (Viking 2007) 254). One can infer from this fictional text that some Turkish Armenians may not need an apology. To apologise would not be anachronism for them; it would just be unnecessary. [28] Sumption (n 8) 19. [29] In Chimamanda Ngozi Adichie’s Americanah , the protagonist, a Nigerian woman living in the United States, says: ‘If the ‘slavery was so long ago’ thing comes up, have your white friends said that lots of white folks are still inheriting money that their families made a hundred years ago. So if that legacy lives, why not the legacy of slavery?’ (Chimamanda Ngozi Adichie, Americanah  (Anchor 2014) 449). [30] Yoni Appelbaum, ‘ The Atlantic and Reconstruction. What we got Wrong in 1901’ ( The Atlantic , 13 November 2023) < https://www.theatlantic.com/magazine/archive/2023/12/journalism-reconstruction-coverage-web-du-bois/675806/ > accessed 16 August 2023. [31] See Martin Luther King, ‘ Letter from a Birmingham Jail’ (16 April 1963)  < https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html > accessed 1 August 2023. [32] On discrimination in the United Kingdom against Black people, and for readers unfamiliar with British society, see Andrea Levy, Small Island (Headline Review 2004) 435. [33] Sumption (n 8) 25. [34] ibid 103. [35] ibid 122. [36] ibid 120. [37] Amartya Sen, Identity and Violence: The Illusion of Destiny (Penguin 2006) 5. [38] See Lee Epstein and Jack Knight, ‘How Social identity and Social Diversity Affect Judging (2022) 35(4) Leiden Journal of International Law 897, 899. [39] ibid 906. [40] Sumption (n 8) 120. [41] ibid 118. [42] ibid. [43] Epstein and Knight (n 38) 907. [44]  VS Naipaul,  The Loss of El Dorado. A History  (André Deutsch 1969) 32. [45] See Liliana Obregon, ‘The Third World Judges: Neutrality, Bias or Activism at the PCIJ and the ICJ?’ in William A. Schabas and Murphy Shannonbrooke (eds), Research Handbook on International Courts and Tribunals  (Edward Elgar Publishing, 2017) 200. [46] See Loveday Hodson, ‘Gender and the International Judge: Towards a Transformative Equality Approach’ (2022) 35(4) Leiden Journal of International Law 913, 922-926. This is not to deny that, although the compositions of many international courts and tribunals are diverse in terms of origin, they still lack gender balance and are clearly dominated by men— see Hodson at 914-16. Moreover, Hodson argues that women still face resistance in some quarters to be nominated for available vacancies in international courts and tribunals and, when appointed, face institutional constraints—see Hodson at 927. [47] See International Court of Justice, South West Africa ( Ethiopia v. South Africa; Liberia v. South Africa ), Second Phase, ICJ Reports (1966). [48] The implications of this decision were severe: a sharp reduction in cases early in the 1970s and a push for the creation of the International Tribunal for the Law of the Sea, as an alternative to the ICJ. Even the ICJ responded by changing the Rules of the Court. See Robert Jennings, Rosalyn Higgins, and Peter Tomka, ‘General Introduction’   in Andreas Zimmermann, Christian J Tams, Karin Oellers-Frahm, and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary  (Oxford University Press, 2019) [76]-[78]; [82]-[83]. [49] See International Criminal Court, ‘Situations and Cases’ < https://www.icc-cpi.int/ > accessed 5 August 2023. [50] See Independent Expert Review of the International Criminal Court and the Rome Statute System, ‘Final Report 30 September 2020’, [462]-[473] < https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf > accessed 19 August 2023. [51] The Appellate Body became inoperative because the United States decided to block the appointment of new Appellate Body members, which prevents consensus. See ‘Farewell speech of Appellate Body member Thomas R. Graham’ ( World Trade Organization , 5 March 2020) < https://www.wto.org/english/tratop_e/dispu_e/farwellspeechtgaham_e.htm#:~:text=The%20Appellate%20Body%2C%20as%20we,it%20is%20better%20this%20way.&text=economies%2C%20such%20as%20China > accessed 15 August 2023. [52] See Alberto Alvarez-Jimenez, ‘A Perfect Model for International Adjudication? Collegial Decision-Making in the WTO Appellate Body’   (2009) 12(2) Journal of International Economic Law 289. [53] See for example Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ (2016) 27(1) European Journal of International Law 9, 30-75; and Robert Howse and Joanna Langille, ‘Continuity and Change in the World Trade Organization: Pluralism Past, Present, and Future’   (2023) 117(1) American Journal of International Law 1, 31-35. Several WTO members have agreed on an alternative system to hear appeals to panel reports: the Multi-party Interim Appeal Arbitration Arrangement. The system has ten arbitrators of diverse origins and gender, as expected. See Daniel Hohnstein and Greg Tereposky, ‘ Pool of Ten Appeal Arbitrators Established for the WTO Multi-Party Interim Appeal Arbitration Arrangement (MPIA)’ ( Lexology , 3 August 2020) < https://www.lexology.com/library/detail.aspx?g=5d84b477-ba5c-4e0e-be25-0e291883b6d3 > accessed 13 August 2023. [54] See Jane Kelsey and Kinda Mohamedieh, ‘UNCITRAL Fiddles while Countries Burn’ ( Friedrich Ebert Stiftung , September 2021) 5-7 < https://library.fes.de/pdf-files/bueros/genf/18297.pdf > accessed 13 August 2023; George Kahale, ‘The Inaugural Brooking Lecture on International Business Law: ‘ISDS’: The Wild, Wild West of International Practice’ (2018) 44(1) Brooking Journal of International Law; Gus Van Harten, The Trouble with Foreign Investor Protection  (Oxford University Press 2020). [55] See John R Crook, ‘Dual Hats and Arbitrator Diversity: Goals in Tension’ (2019) 113 AJIL Unbound 284.

Eliot’s work is filled—especially the poetry—with masks, role-playing, and multiple voices. Yet it is saturated everywhere, too, with displaced personal pain, regret, sexual desire, and emotional and spiritual yearning.[1] TS Eliot’s The Waste Land  is vested with both narratorial distance and, ironically, sympathetic investment. The poem reads like a narrative and an anti-narrative in that it lets one journey in many a stranger’s shoes through Eliot’s seamless, at times inconspicuous, weaving of several voices into the fabric. The glued voices in this cacophony, a ‘heap of broken images’, appear indistinguishable from one another at times, piled on top of and underneath one another, fluidly weaving through and getting lost in one another like entangled limbs. Through employing such a collagic interplay of voices, endless allusions, and decontextualised intertextuality, Eliot deliberately drowns the reader in uncertainty as to who the speaker of the poem is and which voice, if any, is a reflection of his own. The innately challenging and elusive nature of the piece, which features six foreign languages and various allusions, distances the reader from the poet’s voice and authorial intent. However, these facets of the poem also draw the reader into a more intimate and rigorous collaborative process with the poet, and into investigative and performative interaction with the poem. Despite Eliot’s insistence on authorial impersonality, the prioritisation of the execution of the creative task itself over self-expression as a bedrock of ‘great art’, his ‘displaced personal pain’ seeps into The Waste Land . As a result of the waste and sterility of World War I, in addition to Eliot’s own deeply troubled marriage to Vivienne Haigh-Wood, the poem has a strong sense of lack, loss, and yearning for defiantly resolute human connection developed beyond materialism, pretence, and sexual desire. This essay asserts that such ideal connectivity is depicted as intangible and irretrievable in the poem’s landscapes, as a result of the almost prelapsarian pre-war past Eliot nostalgically yearns for throughout the poem. The creation of the poem itself can be interpreted as a symptom of Eliot’s desire for connection to that irretrievable past. Hence, the desire for authentic connection in The Waste Land  can only lead to ‘frustration, ennui, and violence’.[2]   Eliot exploits the multiplicity of nature’s elements and forms in order to examine the idiosyncrasies inherent to human connection. The first stanza of Eliot’s poem is littered with oxymorons and paradoxical metaphors. Eliot utilises the semantic field of nature to establish a strong sense of lack, loss, and sociopolitical fracture representative of that suffered by people in post-war Britain. With ‘April is the cruellest month’ (I.1), Eliot uses the superlative, ‘cruellest’, when personifying April, a month often associated with birth, fecundity, and creativity. This immediately establishes the month as a metaphorical tormentor of the speaker which ‘[breeds] lilacs out of the dead land and [mixes] memory with desire’ (I.2–3). Active verbs such as ‘stirring’, ‘breeding’, and ‘mixing’ suggest a vigorous and intentionally painful intermingling of memory with desire. The personified month of April’s ‘stirring’ of the brewing mixture ultimately intensifies and fixes desire further onto such memories of a seemingly prelapsarian past—one that is painfully intangible in the speaker’s present moment. Rather than invoking an expected sense of hopefulness and joy at the world’s pastoral regeneration, the month of April serves only as a reminder of the unsalvageable practical, spiritual, and emotional crippling the world has undergone. Eliot compounds this motif of decay and degeneration through subversive symbolism and deliberately discombobulating oxymorons. Although lilacs conventionally serve as literary symbols of sensuality and romance, as in The Portrait Of A Lady [3] and Ash Wednesday ,[4] Eliot here subversively employs the image to represent anguish and mourning at the loss of a type of love, a type of connectivity, that cannot exist in a world so utterly fractured by the war. Hence, April breeds a morbid reminder of mutilated sexuality, arising from post-war spiritual sterility, ‘dead land’, and bleak hopelessness. Such perverse sexuality, implicitly represented by the image of the lilac, sharply contrasts with the almost presocial innocence represented by Marie towards the end of the passage.   For Eliot, only ‘winter’ (I.5) can provide ‘warm’ (I.5) respite from such painful truth, as the ‘forgetful snow’ (I.6) provides emotional numbing, literally and metaphorically blanketing over the dark past but unable to bury or evade it even within the literary landscapes of The Waste Land . Approximant alliteration subversively conflates warmth with winter, suggesting that any echo of birth is a haunting reminder of the obscene deaths witnessed as a result of World War I. Hence, aesthetic transformation provides welcome transient distraction but cannot alter the pain of reality.   Eliot depicts the quest for connection as a fool’s errand, an inaccessible dream—mirage-like in its intangibility. Hence, Eliot conjures up the dream of connectivity through his exploration of nature’s interdependence, in order to deliberately dispel the illusion and forcefully undermine the possibility of such connection in a post-war era.   What are the roots that clutch, what branches grow Out of this stony rubbish? Son of man, You cannot say, or guess, for you know only A heap of broken images, where the sun beats, And the dead tree gives no shelter, the cricket no relief, And the dry stone no sound of water. (I.19–24)   The active verb ‘clutch’ suggests intimacy and closeness as well as the persistence and permanence of life, as roots clinging to soil for life-giving water emphasise the interconnectivity and interdependence necessary for survival. Moreover, the image of ‘branches’ resiliently ‘growing out of stony rubbish’ compounds this symbolic persistence of new life, emerging against all odds. This holds particularly true as the natural imagery is reminiscent of Gospel passages depicting Christ as the ‘true vine’: ‘Yes, I am the vine; you are the branches. Those who remain in me, and I in them, will produce much fruit. For apart from me you can do nothing’.[5] This Biblical allusion clearly delineates the need for interconnectivity and remembrance of one’s origins and history, one’s roots. The poet’s symbolic use of natural imagery ultimately tethers struggle and connectivity inextricably, as indivisible strands of thread, depicting struggle as almost a prerequisite for growth and genuine interrelation. The struggle nature undergoes for survival perhaps mirrors Christ’s own struggle to connect with his people. Just as roots ‘clutch’ and branches emerge out of ‘stony rubbish’, perhaps representing the residue of hardships suffered as a result of war, Christ eternally binds himself to his people through his willing suffering and death on the cross. Hence, irrespective of difficulty and hardships suffered, connection persists and heals. Such a notion is compounded as Eliot’s poem appears to reinforce the Gospel passage’s warning that ‘apart… you can do nothing’. However, such truth is realised in tandem with the disconnect and fragmentation permeating The Waste Land .   Eliot’s rhetorical questioning of nature’s mechanisms is, in part, a criticism of man’s naïve understanding of, and belief in, connectivity. Eliot’s use of rhetorical questions coupled with infantilising diction belittles the ‘son of man’, the reader, as it imbues the speaker’s tone with condescending indignation and tauntingly foregrounds the reader’s ignorance about the nature of connectivity and growth—‘you cannot say, or guess’. Starkly contrasting with previous images of fecundity and synergy—‘in the mountains, there you feel free’ (I.17)—Eliot’s subversive use of biblical allusion, and motifs of dryness and apathy, depict the setting of The Waste Land  as a faithless, cruel, and hollow land where the seeds of connectivity are rendered sterile and fruitless. Moreover, the poet’s insistence on silence and sterility—‘no sound of water’—perhaps emphasises the unquenchable spiritual thirst saturating The Waste Land . Eliot’s auditory symbolism ensures that not even a trace of hope of spiritual fertilisation, let alone salvation, remains in sight. His use of mesodiplosis—‘no shelter, the cricket no relief, and the dry stone no sound of water’—creates an atmosphere of hostility and harshness, as it suggests the impossibility of survival in such an unfeeling and detached environment, in addition to its reinforcement of the overall strong sense of lack exhibited throughout the poem. Additionally, such repeated negations, coupled with motifs of death, dryness, and sterility, emphasise the disparity and discord between humanity and nature. As opposed to the intimacy and closeness suggested by the myth of ‘roots that clutch’, the active verb, ‘beats’, subversively evokes an aggrieved image of perpetual aggression and endured pain unlike the connotations of warmth and illumination one would generally associate with sunlight. Eliot’s use of the present tense places the verb, ‘beats’, in everlasting perpetual motion, emphasising the permanence of pain inherent to human existence and experience. This severance between nature and mankind is perhaps symbolic of the utter sense of isolation and sterility felt as a result of the cataclysmic, unprecedented horror of a war that claimed the lives of over eight million soldiers and 13 million civilians.[6]   Eliot’s subversive Biblical allusions reductively transpose the image of Christ from a unifying ‘true vine’ into scattered ‘stony rubbish’. Such degradation may be suggestive of man’s spiritual descent as a result of his divergence from God, particularly as ‘rubbish’ has connotations of pollution, worthlessness, and contamination. Moreover, connotations of impenetrability and lifelessness, vested in the adjective ‘stony’, are perhaps suggestive of the numbing desensitisation and spiritual fracture brought about as a result of the war. Eliot’s evocation of Ezekiel in the following line compounds this sense of isolation and disparity as the speaker’s form of address, ‘son of man’,[7] is the form of address God uses for Ezekiel throughout the King James Bible. Hence, it emphasises the distance between God and Ezekiel, and by extension between God and mankind, as the phrase recalls the Old Testament notion that God alone has no progenitors. To be human is, fundamentally, to belong. Such belonging often comes in the form of the familial ties, but these are notably missing in The Waste Land . Additionally, ‘son of man’ unfavourably interlaces the modern man with Christ himself, the purest son. Hence, it perpetuates the notion that modern man cannot reach this purified state—cannot ‘bridge the gap’, so to speak—as his external and internal worlds have been diminished to a barren ‘waste land’ of both intellectual and sexual exhaustion, a ‘heap of broken images’ (I.22), of past and present painfully colliding.   Such a derogatory metaphor, ‘heap of broken images’, suggests the disorder inherent to human experience and memory, as it reduces humanity’s entire life span to a pile of unconnected scattered incomprehensible memories. This is perhaps representative of the death of a unifying epistemology. The mirror previously held up to reality is shattered; the self is fractured. Everything is a shattered image—a heap of broken images—of a fragmented world. Extrapolating from this notion, it is evident that prior social and political institutions are no longer capable of holding society together. As represented by the multitude of voices, languages, allusions, and confusing footnotes within the text, unification is no longer possible in such a post-war world where we know only separation and multiplicity. We have an epistemology that jumps from image to image, each time only seeing a part of the whole. The whole has been destroyed, and all that remains is ‘fear in a handful of dust’ (I.30).   Eliot’s depiction of love and connection within this poem is one wracked with anxiety, disappointment, and bitterness as exemplified in A Game Of Chess.  The poet’s financial lexis, his employment of luxurious and decadent visual imagery, emphasises the superficiality and hollowness of a society which prioritises commercial objects above emotion. The ‘Held up … standards’ (II.80) delineated by the speaker are met exclusively by the ‘glitter of her jewels which rose to meet’ them (II.84). Although unnamed, the ‘her’ in question is depicted as a mutilated Cleopatra of sorts: a burnt-out ‘shadow’ of a regal yet vilified ‘prostitute queen’, at once exalted and suspicious in her sexuality. Eliot’s unnamed figure serves as a diminished woman, fit for a fallen, depleted post-war world. Despite Eliot’s explicit allusion to Shakespeare’s Antony and Cleopatra , the poet offers no substantial description of the woman’s   character or likeness, focussing exclusively on the material possessions surrounding her. Given Eliot’s allusion to Cleopatra, a woman demonised by ancient Romans as a loathsome manipulator and ‘prostitute queen’,[8] one can interpret the proliferation of noxious and disorienting concoctions as representative of the woman’s dangerous and perverse sexuality. Eliot depicts the unnamed woman’s sexuality as feral: ‘Unstoppered, lurked her strange synthetic perfumes’ (II.87). The adjective ‘unstoppered’, coupled with the active verb ‘lurked’, suggests an untameable, almost animalistic force. The active verb ‘lurked’, combined with Eliot’s use of sibilance, evokes an atmosphere of suspicion and eeriness, suggesting something almost scheming or sly about the woman’s beautification items, rituals, and sexuality by extension. This image of female sexuality as a predatory force is compounded as Cleopatra’s ‘perfumed sails’ are metamorphosed into ‘strange synthetic perfumes’ that ‘troubled, confused and drowned the sense in odours’ (II.88–89). The active verb ‘drowned’, vested with peculiarly aggressive and murderously malicious intent, equips female sexuality with dangerous, devious, almost sinful connotations as ‘her hair spread out at fiery points’ (II.110). Hence, in The Waste Land , sexuality is portrayed as degenerative rather than productive or procreational, entirely ostracised from the concept of connection whether it be to the other or to the self. Rather, sexuality is depicted to be an entirely sinister and destructive force.   Eliot, through his depiction of characters such as Lil and the ‘indifferent’ typist, demonstrates how society commodifies and lays claim to the female body, perversely estranging women from their own bodies.   Her drying combinations (III.225)   Out of the window (III.224)   Hardly aware of her departed lover; Her brain allows one half-formed thought to pass: ‘Well now that’s done: and I’m glad it’s over’ (III.250–52)   The typist’s ambivalence at her bodily exposure, coupled with Eliot’s choice of diction in ‘her brain allows’, suggests a divorce of the mind from the body. The distinction between her brain assenting to thought, rather than her entire being assenting, reinforces both the fracture of the mind and body torn apart by societal expectation and the non-consensual nature of the act. This metaphor of allowing thought to enter, consciously consenting, is perhaps suggestive of the figurative mental barriers the typist must employ as an emotional defence mechanism against the brutality of reality. The brain then acts as a guard of sorts, permitting and disallowing ‘thought to pass’, but pass into where? Into the body, the mind, the soul? Regardless, such dissociation and compartmentalisation, suggestive of societal fracture and desensitisation, is clearly symptomatic of the trauma of having to physically adhere to societal expectations and predetermined gender constructs whilst being mentally and emotionally unwilling.   Moreover, Eliot depicts the female body as exploitatively mechanised and commodified to the extent that it results in the erasure of female autonomy, male empathy, and the understanding that females have an intrinsic value divorced from profits they can bring. Defined by their bodily output, whether it be their capacity for labour or their fertility, women such as Lil and the nameless typist ‘polemically depict a metonymized society in which individuals are both dismembered and standardized’.[9] The typist, blatantly defined by her job, is perhaps representative of the way in which modern labour, through its focus on productivity maximisation and phatic repetition, dehumanises people as it robs them of their individuality and humanity. Moreover, the typist puts up ‘no defence’ (III.240) against the ‘young carbuncular man’s … assaults’ (III.231–39). Apathetic to her desires, he ‘makes a welcome of indifference’ (III.242) and ‘bestows one final patronising kiss’ (III.247). The carbuncular young man’s clear disregard for the other’s emotions, his prioritisation of his own pleasure irrespective of the other, clearly delineates his view of the nameless woman’s body as a vehicle for pleasure. Eliot’s revelatory hierarchical rhetoric in ‘bestows … patronising’ clearly indicates the male’s strong sense of agency over, and entitlement to, the typist’s body. Such a notion is further perpetuated through Eliot’s strategic use of diction, as ‘patronising’ perhaps refers to the man’s commodification of the female body in addition to his condescension towards the lady. In both cases, it is evident that there is no place for emotional connection in the sterility of Eliot’s ‘waste land’.   Eliot’s strategic grating of this motif of sterility and infertility against the expectation that relationships must be generative and profitable in some way, tenuously fuels the seething fire of anxiety underlying most heterosexual relationships in The Waste Land . Eliot depicts how the issue of fertility, its conflation with intrinsic value of a female, transcends class. His exploration and intertwinement of a conglomeration of upper-class and working-class voices and experiences delineate the ironic universality of fragmentation and isolation: ‘I didn’t mince my words, I said to her myself … think of poor Albert … HURRY UP PLEASE ITS TIME’ (II.140–52). The repeated intrusion of this ushering voice immediately establishes a strong sense of urgency ‘as it serves to make the more general point that “we” are in crisis’.[10] Like a ticking time bomb, a timer about to run out, the bartender’s call is seemingly symbolic of the societal pressure on women to conform to particular gender constructs and bear children in adherence to society’s deadlines. Eliot’s purposive capitalisation of the phrase intensifies the strong sense of urgency, as if the voice were a shout from afar, a call from the void. It ultimately emphasises how loud, aggressive, and pressurising society’s expectations of the female body can be. ‘Lil’, representative of all women at this point in the poem, doesn’t get to decide when her time is, society dictates that. Moreover, the speaker’s repetition of the personal pronoun ‘I’—‘I swear, I can’t bear to look at you. / And no more can’t I, I said’ (II.146–47)—establishes a strong sense of singularity which, through drawing the reader away from Lil’s lived experience into the speaker’s biased narration of it, ultimately denotes the lack of sophisticated empathetic faculties available to members of such an emotionally depleted, now inept, society.   Vivien Haigh-Wood’s addition of the pointed question ‘What you get married for if you dont want children?’ (II.164)[11] is perhaps reflective of her own marital troubles as Eliot’s refusal to have children would likely have been perceived as a refusal to carry out expected marital duties at the time. This notion that connection should only exist, relationships should only be forged, if quantifiably profitable and generative is linked to recurring motifs of transactionality, sterility, and desensitisation within The Waste Land . Obsession with the tangible and the financial, and with the   commodification of all sacred things, such as bodies and language itself, is perhaps symptomatic of the utter loss and devastation collectively suffered at the hands of death that has undone ‘so many’ (I.62). ‘The rich profusion’ (II.85) of wealth is thus futilely utilised in an attempt to fill the void loss has created.   Such fixation on quantifiability manifests itself both subtly and explicitly in Eliot’s appropriation of monetary diction in Death by Water . Eliot’s use of oxymoron (‘deep sea swell’ (IV.313)) establishes   motifs of increase and decrease, inflation and depreciation, indicative perhaps of the ‘profit and loss’ (IV.314) he goes on to mention in the following line. Financial motivation, this ‘rich profusion’ of monetary madness, manifests itself subtly in Eliot’s witty wordplay, ‘A current under sea / Picked his bones in whispers’ (II.315–16). Eliot’s intertwinement of the semantic fields of nature and finance covertly sows the seeds of monetary diction throughout the section, perhaps symbolising how capital is consciously and subconsciously valorised in such a society. Eliot’s omission of ‘the’ covertly hints to currency, perhaps metaphorically symbolising the way in which superficiality and the prioritisation of the tangible slowly wears one’s soul and sincerity away. Such financial preoccupation perhaps stemmed from Eliot’s own personal concern about economic life after the war. He worked at Lloyd’s Bank for a time, and read several publications in several languages regarding post-war economic affairs. John Maynard Keynes, for example, confessed a lack of hope for a healthy global climate should the Versailles Treaty, which imposed an immense amount of global debt onto Germany, not be revised. Hence, Eliot’s private concern with the economic peril facing Europe, in addition to his understanding of cooperation and interaction as prerequisites for survival, may spill both consciously and subconsciously into the entirety of The Waste Land.   Moreover, one of the rare instances in which Eliot chooses to employ direct speech comes in the form of a nameless woman’s erratic plea: “Stay with me. / Speak to me. Why do you never speak. Speak’’ (II.111–12). Eliot’s purposive implementation of speech marks, in tandem with his omission of question marks, proves particularly intriguing as it simultaneously facilitates and restricts the speaker’s scope for self-expression and connectivity. By virtue of Eliot’s rare attribution of direct speech—the privilege of self-narration—to female characters in his poem, this delegation seemingly bestows a unique sense of agency upon this nameless speaker. This, coupled with the repeated imperative ‘Speak’, would likely create the illusion of authority were it not for Eliot’s utilisation of such techniques exclusively in order to counteract and undermine them at a later point. One may perceive Eliot’s omission of question marks, ‘Why do you never speak’ as a reinforcement of the increasing forcefulness and frustration with which the nameless speaker commands the other, though it is perhaps more indicative of the other’s disengagement. As the tissues of her speech disintegrate from dialogue into the fibres of a neurotic stream of consciousness, it is evident that the speaker’s proliferation of imperatives are indicative of desperate supplication, symptomatic of intense loneliness, as opposed to frustration. Moreover, it is important to note that the speaker’s dialogue is ultimately being expressed and mediated through Eliot himself, thus adding another layer of distance between the reader and the nameless female. Perhaps inspired by Vivien Haigh-Wood, one assumes similitude between this decaying female character and Eliot’s former spouse as a result of her infamous struggles with mental health and her inability to cope with the loss of Eliot’s love and presence: ‘The only thing I yearn for & bleed for is the day when Tom calmly returns’.[12] The speaker’s strong sense of isolation and loneliness is thus illuminated through Eliot’s juxtaposition between the agency associated with the privilege of self-narration and the lack of reciprocity and acknowledgement indicated through Eliot’s omission of question marks.   The desire for connection and true understanding of the other is compounded through the speaker’s repetitive questioning, ‘“What are you thinking of? What thinking? What … Think”’ (II.113–4). Through its emphasis on inquisitive and contemplative diction, Eliot’s symploce elucidates the speaker’s attempt at linguistic infiltration of the other’s internal landscapes. However, once more, the hope for reciprocity and acceptance dissipates as the coherence and sentence length of her speech dwindles, increasingly revealing the impossibility of connection. In place of such lack lies bleak numbness, monotony and sterility:   ‘What is that noise?’ The wind under the door. ‘What is that noise now? What is the wind doing?’ Nothing again nothing. (II.117–21)     Ultimately, Eliot summarises his stance on the possibility, or lack thereof, of all forms of connection in The Fire Sermon : ‘On Margate Sands / I can connect / Nothing with nothing’ (III.300–03). Asseel Darwish Asseel Darwish is a first-year undergraduate in English at University College London, interested in foreign diplomacy and commercial law. She has worked in mental health advocacy and course development within UCL’s Student–Staff Consultative Committees, and is part of the new ‘Student Voice Project’. In 2021 she will begin working for Ashbourne College as a content writer, and for the not-for-profit GoodWill Caravan, which gives vulnerable refugees emergency care. [1] Vincent B Leitch, William E Cain, Laurie A Finke, Barbara E Johnson, and John McGowan (eds), The Norton Anthology of Theory and Criticism  (second edn, WW Norton 2010). [2] ibid 127. [3] Henry James, The Portrait of a Lady  (first published 1881). [4] TS Eliot, Ash Wednesday  (first published 1930). [5] The King James Bible  (first published 1611). [6] Leitch et al (n 1). [7]  The King James Bible  (n 5). [8] Jacquelyn Williamson, ‘Cleopatra and Fake News: How ancient Roman political needs created a mythic temptress’ ( Shakespeare & Beyond , 20 October 2017) < https://shakespeareandbeyond.folger.edu/2017/10/20/ cleopatra-mythic-temptress/ > accessed 20 February 2021. [9] Michael North, The Political Aesthetic of Yeats, Eliot, and Pound  (Cambridge University Press 1991). [10] Raymond Southall, ‘The Poetry and Culture of T. S. Eliot’ (1983) 1 Sydney Studies in Society and Culture 146. [11] Dalya Alberge, ‘Diaries of TS Eliot’s first wife reveal her torment at the end of their marriage’ Guardian  (London, 2 June 2017) < https://www.theguardian.com/books/2017/jun/02/diaries-of-ts-eliots-first-wife-reveal-her-torment-at-end-of-their-marriage > accessed 20 February 2021. [12] ibid.

International law faces two profound issues. Each involves Article 2 of the Charter of the United Nations prohibiting the use of force by one Member State against another. Both concern the roles of the Security Council and the International Court of Justice (ICJ).   One—Ukraine and the Russian Federation (Russia)—is whether the armed entry into Ukraine on 24 April 2022 and since of Russia as a great power is immune from the rule of law.   The other—Gaza/Palestine and Israel—concerns the relations between another state, Israel, and its immediate neighbour Palestine, including the small Gaza strip. There is currently awaited on the topic of Israel’s treatment of Palestine an advisory opinion of the International Court of Justice of major importance on which judgment was reserved on 26 February 2024.   On 7 October 2023, citizens of Israel and visitors were brutally and unlawfully attacked and 1,100 people killed by members of Hamas crossing the border from Gaza who then committed the further war crime of hostage abduction of some 250 people. Israel’s response, in reliance on rights of self-defence, has resulted at the time of writing, and before a proposed forthcoming ground offensive, in over 30,000 deaths and many more injuries in Gaza in air and other attacks, said to be directed against the Hamas attackers. The victims were predominantly innocent civilians and their children. Wholesale demolition of buildings is alleged to have caused further deaths. On 20 May 2024 the Prosecutor of the International Criminal Court published a statement that he was seeking issue by ICC judges of warrants of arrest in the situation in the State of Palestine against: the Head Yahya SINWAR (Head of (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI (Commander-in-Chief of the military wing of Hamas), and Ismail HANIYEH (Head of Hamas Political Bureau) for war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023; and

Peter Krausz was born in Romania in 1946. He studied mural painting from 1964 to 1969 at the Bucharest Institute of Fine Arts. Since 1970, he has made Montreal his home. His diverse artistic production includes painting, drawing, installation, and photography. From 1980 to 1990, he was the curator of the Saidye Bronfman Centre Art Gallery and a teacher at Concordia University. In 1991, he joined the faculty at the University of Montreal where he is now a tenured Professor of Fine Art in the Art History and Cinema Studies Department. Since 1970, Peter Krausz has participated in numerous solo and group exhibitions in Montreal and across Quebec, Canada, and the United States, as well as in Europe. His works can be found in private and prominent public collections such as The Montreal Museum of Fine Arts, The National Museum of Fine Arts in Quebec, The Montreal Contemporary Art Museum, The Jewish Museum in New York, and many others. He is a member of the Royal Canadian Academy. Gabriella Kardos: You grew up in an artistic household in Romania, your father a renowned painter and professor, your mother an art historian, curator at the National Gallery of Art. You must have been exposed to discussions about art and art history from an early age. How did that shape your desire/choice of becoming an artist?   Peter Krausz : It was not much of a choice. Like Obélix in Goscinny and Uderzo’s Astérix le Gaulois  [ Asterix the Gaul ], one could say that I fell into the pot from an early age. I listened and later participated in the weekly discussions between painters, sculptors, art historians, and so on in our very open house and started drawing and copying Velázquez paintings from my father’s art books when I was 5 years old. As a teenager, I often accompanied my dad to the month-long summer camps for art students in different areas in Romania, where I was painting and drawing the countryside. So, it was more of a natural development, leading towards the entry exam to the Art Institute in Bucharest. Fig 1. 13 août 1961 (Peter Krausz 1988, oil on wood, tar, 285 x 244 cm / 112 x 96 inches). Collection Galerie UQAM, Montréal, 1994 © Peter Krausz GK: The theme of borders features strongly in your work. How did it evolve? I imagine your escape from the communist regime of Romania must have played a part in this. Can you recount the experience of crossing the border from the Eastern bloc to the West? What was the political context and what made you decide to leave your native land, risking your ability to ever return, or even imprisonment?   PK : We felt that we were living in a cage—even if towards the middle of the sixties the communist regime was more relaxed, we were not allowed to travel except in other communist countries. And by the end of the decade, we had the feeling that things will only get worse after the invasion of Czechoslovakia by the Warsaw Pact. More nationalism and antisemitism and a feeling that the regime is hardening its authoritarian position. This proved to be true after we left and after Ceausescu’s return from China and his developing cult of personality. The risk I took doesn’t compare to the risk that my parents took, leaving behind their jobs, friends, and family, trying to provide a better future for their son.

Introduction My philosophy aims at an ordering of rank: not at an individualistic morality. The ideas of the herd should rule in the herd—but not reach out beyond it.[1] Nietzsche, The Will to Power   Alongside Marx, Nietzsche was one of the great 19th-century critics of modernity. Contra Marx, for some time the operative assumption was that Nietzsche was effectively an apolitical critic. Caustic and elitist perhaps, making the occasional bizarre aside on ‘blond beasts’ and warlike ‘great politics’. But in the end too rarefied, too individualistic, and too spiritual (in his own way) to have much to say about the distinctly social concerns that animate political theorists and commentators.   This interpretation owed much to efforts to push against crudely reading Nietzsche as a proto-Nazi thinker. It is easy to forget that no less a public intellectual and academic giant than Bertrand Russell described the Second World War as ‘Nietzsche’s war’.[2] This was an easy mistake to make, given that the Nazis themselves were eager to appeal to Nietzsche’s growing philosophical prestige to give their movement a veneer of intellectual respectability.[3] Against this, seminal interpreters like Walter Kaufmann read Nietzsche as an existential psychologist offering eschatological (to use a spiritual term in a non-spiritual sense) advice on how to navigate an increasingly nihilistic horizon.[4]    These efforts were an understandable overcompensation for the climate of hostility that existed before. By the 1970s, however, things had shifted again, as a more distinctly political Nietzsche was discovered. This was the post-structuralist philosopher of difference and critic of normalisation and power, so effectively popularised by Foucault and Deleuze. In their hands, Nietzsche once more had a politics—but one that was quasi-egalitarian, anti-bourgeois, focused on pushing against all forms of conservative conformity and hierarchy in the name of an ethics of self-creation or rhizomatic community formation.[5] It was this Nietzsche which many of us who trudged through the academy were brought up in: a thinker so punk he made his way into memes about pissing off the squares. In the 2000s, yet another turn occurred. More and more of us became aware of two unfortunate developments. The first was the global resurgence of the far right, both politically and intellectually. The second was that Nietzsche proved a major influence on a new generation of far-right thinkers, and that they seemed to think there were good reasons to be influenced by him. As Mark Sedgwick put it, Nietzsche belongs with Heidegger, Spengler, Jünger, Schmitt, and Evola as ‘required reading for today’s intellectual radical right’.[6] With the election of Trump in 2016 and the broader resurgence of far-right and right-wing populist movements around the globe, a sustained re-evaluation was probably inevitable, as the political stakes of what were once mostly cute academic questions suddenly seemed far higher.[7] This little essay is a small contribution to this re-evaluation. I want to make clear that Nietzsche is a great thinker. Like his peers in the pantheon, there are many ways to respond to and be influenced by his work. While my paper will conclude with an argument that Nietzsche belongs very decidedly on the political right—indeed, that he is the greatest critic of the left to have ever emerged—none of that undermines the importance of his ideas to many liberal and progressive thinkers. Rorty, Foucault, Deleuze, Wendy Brown, and the rest may draw on many Nietzschean ideas. Their writings are more than rich enough to withstand resituating Nietzsche on the radical right. My paper will open with a discussion of how ‘left-Nietzschean’ takes on the master have been, and will continue to be, of interest. Nevertheless, there is much to be said for taking Nietzsche at his word that a basic concern of his political philosophy is with achieving an ‘ordering of rank’ flowing from his emphatic rejection of the ‘lie of equality of souls’.[8] In the latter sections, I’ll examine how Nietzsche has influenced the radical right in the form of ‘right-Nietzschean’ politics. I will also conclude that, whatever one thinks about violent and creative ‘left-Nietzschean’ appropriations, they run counter to Nietzsche’s own political convictions. Nietzsche once declared that ‘the worst readers are those who behave like plundering troops: they take away a few things they can use, dirty and confound the remainder, and revile the whole’.[9] If we liberals and progressives are to be troops plundering the Nietzschean corpus, better that we know ourselves as what we are. On Left Nietzscheanism Left Nietzscheanism has a long pedigree, dating back to the socialist appropriation of his work in the late 19th century. Notwithstanding Nietzsche’s resolute anti-socialism, anti-feminism, and eventual anti-liberalism, there has been a longstanding effort to mobilise his writings for progressive projects, or even to systematically rework him into a left-radical. As Ansell-Pearson puts it, Nietzsche’s work did not ‘immediately appeal to the right, as one might expect given its aristocratic pretensions and distaste for socialism. On the contrary, in the two decades following his breakdown, it was taken up with interest and imagination by socialists, anarchists, and feminists, all of whom saw Nietzsche’s work as preoccupied with the quest for individual self-realisation’.[10] There are a handful of primary reasons for this.   Firstly, many on the left find Nietzsche’s emphasis on authentic or expressive ‘individualism’—his injunction to ‘become who you are’—decidedly appealing.[11] To put it in modern parlance, for many left commentators, chief amongst them Deleuze, Nietzsche is fundamentally a philosopher of self-creation and individuated social difference. He offers a guide on how to resist both bourgeois moralism and conservative traditionalism and create a more interesting, non-conforming and potentially radical selfhood. And, just as importantly, how to create such a self-hood without becoming pathologically sickened by ressentiment  and a permanent sense of victimhood. For instance, in her seminal S tates of Injury Wendy Brown draws on Nietzsche to discuss how victims of oppression often form a ‘wounded attachment’ to their own identity as victims. Understandable as this may be, the end result is that the victim’s identity remains determined by their oppressors. Fuller emancipation requires victims to give up their ‘wounded attachment’ to identifying as victims and create a new kind of identity for themselves which owes nothing to the oppressor.[12] In this mission, Nietzsche offers an inspiring model.   Secondly, many on the left have found ample resources in Nietzsche to develop highly novel conceptions and critiques of power and reactionary politics. The gold standard in this respect is of course Michel Foucault, whose ‘genealogical’ period of the 1970s saw him analyse the way different forms of knowledge and power instantiate themselves. This includes the application of institutional discipline, engendering the formation of normalised subjects who have so internalised the imperatives of power they no longer need to be physically coerced. The soul becomes a prison for the possibilities of the body.[13] More recently, Brown has continued her pioneering revaluation of Nietzsche to describe how right-populist and right-authoritarian movements are very much motivated by forms of ressentiment . These are often forms of ressentiment which Nietzsche himself did not predict, given his frequent blind-spots about the kinds of pathologies that can emerge in the social elite. Rather than ressentiment originating in the herd and being directed upwards at the nobility, Brown contends that neoliberal economic conditions engender a culture where elites come to resent any and all progressive efforts at challenging their affluence, power, and status.[14] This ressentiment becomes a powerful mobilising force for the contemporary right along a variety of axes.   Thirdly, Nietzsche’s middle-period perspectivism and historicist approach to knowledge and morality have proven vastly influential for a host of left-sceptics. They have been inspired by Nietzschean discussions of epistemology and meta-ethics, developing novel critiques which deflate the totalising ideologies proffered by the right. This deflationary effort is intended to reduce the impulse to impose totalising ideologies on resistant individuals in the name of objective ‘truth’, and in so doing create political space for a more pluralistic and less cruel society. A lucid exposition of this position was given by Richard Rorty in Philosophy and Social Hope. As Rorty summarises, ‘rightist thinkers don’t think that it is enough just to prefer democratic societies. One also has to believe that they are Objectively Good, that the institutions of such societies are grounded in Rational First Principles […] My own philosophical views—views I share with Nietzsche and Dewey—forbid me to say this kind of thing’.[15] In this respect, Nietzsche can be seen as the forefather of a whole host of sceptical post-modern critics, including Foucault and Rorty of course, but also Derrida, Said, and Lyotard.   Fourthly, and less well known, has been Nietzsche’s important influence on many religious left-communitarians. Much of this influence has of course been negative, qua MacIntyre’s famously apocalyptic insistence that fallen modernity is thoroughly Nietzschean.[16] But Nietzsche’s rich and evocative account of secularism and the basis of egalitarian radicalism in Christianity has also had a constructive impact on figures like Charles Taylor (and, for that matter, myself).[17] Thinkers like Taylor suggest we should take seriously Nietzsche’s insistence that the basis of left-politics is in fact the Christian ethic that all are equal in the eyes of God and that Jesus is the deity of the ‘wretched of the earth’. And one should also put considerable stock in Nietzsche’s remarkable claim that secularism and nihilism are not external forces operating on Christianity, but instead emerged immanently from within Christianity itself. Nietzsche claims that the Christian will to truth is what ultimately destroyed Christianity, compulsively leading it to its most ‘striking inference’—the inference against itself.[18] There is, then, a poetic sense in which nihilism is the final kind of self-punishment Christianity inflicts upon us.  In this case, our punishment is the felt absence of Christianity and God after their self-inflicted implosion, mirroring how the invention of guilt and conscience is felt as a sick constraint on the free moral will Christianity also invents.   All great things bring about their own destruction through an act of self-overcoming: thus the law of life will have it, the law of the necessity of ‘self-overcoming’ in the nature of life-the lawgiver himself eventually receives the call […] In this way Christianity as a dogma was destroyed by its own morality, in the same way Christianity as morality must now perish to: we stand on the threshold of this event. After Christian truthfulness has drawn one inference after another, it must end by drawing its most striking inference, its inference against itself; this will happen, however, when it poses the question ‘what is the meaning of all will to truth?[19]   Thought through, this observation has important things to teach us about the nature of modernity, postmodernity, and religion.   Finally, there are left-Nietzscheans who have more ambitious projects than simply appropriating certain useful Nietzschean arguments. They aspire to a more systematic left-Nietzschean politics, usually through synthesising his writings with other, complementary, and more transparently progressive figures. A popular pick is the ultimate anti-capitalist author: Marx.[20] A classic example of such efforts were Deleuze and Guattari’s joint works Anti-Oedipus and A Thousand Plateaus ,   which draw on Nietzschean ideas to critique the limitations of vulgar Marxism and Freudianism.[21] A more recent effort in this vein is Jonas Ceika’s How to Philosophize with A Hammer and Sickle: Nietzsche and Marx for the Twenty First Century. Ceika claims   that:   we can find in Nietzsche, however underdeveloped, a critique of capitalism. Modern life, as he saw it, was primarily divided between the toilsome and unfulfilling lives of wage workers, the meaninglessly calculated lives of businessmen and property owners, and the inhuman and hypocritical lives of state bureaucrats and politicians. All of these modes of existence for Nietzsche were equally contemptible, and he was unable to discover in any of them the potential for a future society.[22]   On this basis, Ceika tries to develop an explicitly ‘Nietzschean socialism’ for the new millennium. While I remain sceptical of the potential for such a systematic fusion, let alone the development of a comprehensive ‘Nietzschean socialism’, there is certainly much to be said about the ambition—even the audacity—of such attempts. And in the end these efforts should be evaluated on their own merits and demerits, rather than castigated for genetic impurity.   These left-Nietzschean efforts have all been rich and even profound intellectual contributions to the cause of securing liberty, equality, and solidarity for all. Their successes, or at least interesting failures, demonstrate why there is much value in creatively reworking Nietzsche for the left. But a creative reworking they must remain, since, as the next section will demonstrate, they run very much against Nietzsche’s political inclinations towards aristocratic radicalism—and his seething contempt for the political left.   Nietzsche, the Right Nietzschean   The great majority of men have no right to life, and serve only to disconcert the elect among our race; I do not yet grant the unfit that right. There are even unfit peoples.[23] Nietzsche, The Will to Power Contrary to what was once the conventional wisdom, Nietzsche’s works are filled with political observations and prescriptions, a huge number of which lean towards the political right in their tone and connotations. This trucks with his own political development, expertly traced by Losurdo, from a Wagnerian German nationalist opposed to the French Revolution, to cautious flirtations with an elitist liberalism, to his own mature commitment to aristocratic radicalism. In his correspondence with Nietzsche, the Danish critic Georg Brandes described the former’s philosophy as a kind of ‘aristocratic radicalism’—an interpretation Nietzsche approved of. Losurdo has consequently applied the label as a shorthand definition of Nietzsche’s politics, and I see little reason to disagree.[24] While Nietzsche never produced a systematic work of political philosophy, he was willing to be startlingly programmatic about what he wanted and why. The clearest example of this is in Beyond Good and Evil, where Nietzsche describes his social aspirations, and makes very clear that this should be an ‘aristocratic society’, defined by clear differences of rank and caste.   Every elevation of the type ‘man’, has hitherto been the work of an aristocratic society-and so it will always be: a society which believes in a long scale of orders of rank and differences of worth between man and man and needs slavery in some sense or other. Without the pathos of distance such as develops from the incarnate differences of classes, from the ruling caste’s constant looking out and looking down on subjects and instruments and from its equally constant exercise of obedience and command, its holding down and holding at a distance, that other, more mysterious pathos could not have developed either…in short precisely the elevation of the type ‘man’, the continual ‘self-overcoming of man’, to take a moral formula in a supra-moral sense.[25] The question then becomes: what kind of politics is engendered by ‘aristocratic radicalism’, defined by a ‘pathos of distance’ between castes? Here, Nietzsche offers a number of interrelated claims.   Firstly, Nietzschean politics would be a kind of ‘great politics’, operating at a far more elevated and edifying level than the crude calculus of national interests characterising Bismarckian Realpolitik  or the vulgarities of international class struggle.[26] It would also be more violent, in no small part due to the twinned consequences of nihilism: that human life has no intrinsic worth, and that strength and will could nevertheless allow one to elevate life into something of worth. With the transvaluation of notions of absolute truth and morality enacted in part by Nietzsche’s own writings, ‘the concept “politics” then becomes elevated entirely to the sphere of spiritual warfare. All the mighty realms of the ancient order of society are blown into space—for they are all based on falsehood: there will be wars, the like of which have never been seen on earth before. Only from my time and after me will politics on a large scale exist on earth’.[27] In such a setting, the more noble kinds of personalities could be made stronger through struggle, and whole peoples commit themselves to higher kinds of spiritual enterprises.   Secondly, Nietzsche makes it very clear that his preferred form of social ordering will be rigidly hierarchical and characterised by mass subjugation and subordination. This point has been widely and understandably misunderstood, given Nietzsche’s emphasis on the creation of ‘free spirits’ who would be liberated from the desire for revenge. To be clear, Nietzsche would be contemptuous of those who found affirmation in the subordination of the lower orders as an end in itself . He would have undoubtedly found the philosophy of cruelty for its own sake, embodied by fascism, along with its nationalism and populism, both utterly reprehensible and of course yet another sign, if one was needed, of the incurable stupidity of the Germans.[28]    However, this does not mean that a caste of aristocratic ‘free spirits’ would refrain from subordination. The kinds of subordination they imposed would be instrumental—both liberating the aristocracy from the need for mundane labour and engendering the ‘pathos of distance’ between classes and castes, necessary for higher forms of culture and personalities to develop. This would mean rejecting the poison of the doctrine ‘equal rights for all’, which has been ‘thoroughly sowed by Christianity than by anything else’ and militates against every ‘feeling of reverence and distance between man and man, against, that is, the precondition of every elevation, every increase in culture—it has forged out of the ressentiment  of the masses its chief weapon against us’.[29] Nietzsche also makes very clear that preserving such a stratified order means refraining from educating the lower orders, to ensure they remain content with their status as ‘slaves’:   The stupidity, fundamentally the instinct degeneration which is the cause of every stupidity today, lies in the existence of a labour question at all […] There is absolutely no hope left that a modest and self-sufficient kind of human being, a type of Chinaman, should here form itself into a class: and this would have been sensible, this as actually a necessity. What has one ever done? Everything designed to nip in the bud even the prerequisites for it—through the most irresponsible thoughtlessness one has totally destroyed the instincts by virtues of which the worker becomes possible as a class, possible for himself […] If one wills an end, one must also will the means to it: if one wants slaves, one is a fool if one educates them to be masters.[30]   Thirdly, Nietzsche insists that his new radical aristocracy will consist of individuals with noble forms of personalities. What exactly these types would look like is perhaps the most complex and incomplete element of Nietzsche’s politics. At points, especially in his early writings, Nietzsche demonstrates a clear nostalgia for the noble types of warrior aristocrats conceived in the Dionysian period of Greek thinking, before Socrates and then Christianity emerged and began mucking things up. He rhapsodises about the ‘Greek genius’ of ‘Homer, Pindar, and Aeschylus, as Phidias, as Pericles, as Pythia and Dionysus’ and laments its decline.[31] These kinds of warrior aristocrats were life affirming, courageous, violent, and revelled in their superior strength as a sign of health and vitality, rather than repudiating it as pride or malice.   At other points Nietzsche demonstrates a more multifaceted—dare I say dialectical? —disposition. He is disgusted at how the Christian creation of guilt and conscience turned human beings against their own instincts as a kind of self-inflicted punishment. But at the same time he acknowledges that, by doing so, Christianity engendered a level of depth and interiority in humankind which had been lacking before.[32] After all, Hamlet’s guilt and tragic indecisiveness may make him a less outwardly noble soul than ‘wise’ Achilles. But the gloomy Dane’s ruminations about the human condition and its possibilities constitute a clear psychological advancement on the kind of magnificent flatness of the Homeric hero. Ultimately, the kind of personality Nietzsche longed for in his aristocratic radicals was some highly unlikely fusion of the antiquarian and the Christian into a new secular ideal. His highest impossibility was a Roman Caesar with the soul of Christ.[33]   Fourthly, married to more programmatic statements about the kinds of politics Nietzsche endorsed were equally emphatic critiques of those he did not. Throughout his work, he tirelessly aims condemnations and barbs against an array of real and imagined political opponents. Overwhelmingly, his most venomous bullets are directed against forces on the left, who for Nietzsche embodied the herd morality of Christianity with all its ressentiment  and envy of the nobility. This reflects Nietzsche’s startling claim that, notwithstanding the often militant secularism of these groups and their ideologies, it was liberals and socialists who constituted the clearest continuation of Christian morality in the present day. In his mature period, Nietzsche rejects liberal institutions because they ‘undermine the will to power, they are the levelling of mountain and valley exalted to moral principle, they make small, cowardly, and smug—it is the herd animal which triumphs with them every time’. He condemns liberalism as ‘in plain words: reduction to the herd animal’, describing it as a philosophy for ‘shopkeepers, Christians, cows, women, Englishmen and other democrats’.[34] He is even more emphatic about the degenerate genealogy of socialism (Christianity with the residue of Rousseau, in the language of The Will to Power ),   for which he reserves his most special hatred:   Whom do I hate most heartily among the rabbles of today? The rabble of Socialists, the apostles to the Chandala, who undermine the workingman's instincts, his pleasure, his feeling of contentment with his petty existence—who make him envious and teach him revenge.... Wrong never lies in unequal rights; it lies in the assertion of ‘equal’ rights.... What is bad? But I have already answered: all that proceeds from weakness, from envy, from revenge. — The anarchist and the Christian have the same ancestry.[35]   The striking conviction that it is liberals and socialists who carry on the legacy of Christian morality obviously orients Nietzsche against many on the political right, for whom the portrayal of progressivism as profane and godless is a near addiction. But this is also what makes Nietzsche the most penetrating critic of the left ever to emerge; one who has the intellectual ambition and audacity to go all the way in a totalising critique of Western civilisation and religion where more timid reactionaries will artificially halt. Reactionaries like De Maistre and Burke saw in Christianity the basis for a society stratified into hierarchically complementary ranks, mapping a transcendent pattern ordained by God. They saw the rejection of this ‘great chain of Being’ as one of the catalysts for the Satanic revolutionary epoch. For Nietzsche, this generic rightist position could not be more wrong-headed.[36] The herd morality of Christianity in classical form struck the first blow against the aristocracy. And Christianity remained the increasingly concealed basis of the revolutionary epoch, since ‘ Christian value judgement […] translates every revolution into mere blood and crime! Christianity is a revolt of everything that crawls along the ground directed against that which is elevated: the Gospel of the lowly makes low’.[37] Secularised Christian morality in the form of liberalism and socialism had thus far survived its own immanent attack on itself, withstanding the deconstruction of Christian metaphysics driven by a self-destructive will to truth.   One of Nietzsche’s great hopes and fears was that as the metaphysical implications of the ‘death of God’ set in this would lead to a ‘transvaluation of all values’ which recognised and rejected the foundation-less quality of secular Christian morality. While Nietzsche was himself no social Darwinian, there is a sense in which he thought that the transvaluation of Christian values would lead to a more naturalistic value system, one that affirmed the differences in strength and personality between persons rather than regarding human beings as all equal before the throne of God. A famous example is his insistence that the soaring eagles may be called frightening and evil by the lambs below. But in fact the eagles may well love the ‘tasty lambs’ on which they gorge themselves.   Conclusion: Right Nietzschean Politics Past and Present    Nietzsche was very much a man of the right—though of course not in any conventional sense. This can be missed by those who conceive of the political right exclusively in conservative terms, à la the cautious and prudent management or change or transformation of what one must to conserve what one can. While a popular conception of the right, not least because it is promulgated by many conservatives themselves, this image has always been faulty in important respects.[38] When those on the right come to feel that the decadent and herd like movements of the left have been driving the culture for too long, they can very easily conclude that there is nothing left worth conserving. In such contexts transformative and great changes may be called for and even prophesised as inevitable, whether under the guise of ‘aristocratic radicalism’, ‘Conservative revolution’, or, in the most sinister moments, fascist populism. Nietzsche very much fits into this vein as its most remarkable contributor.   It should come as no surprise that Nietzsche’s influence on past and present rightist politics has been enormous—though whether he would be pleased with his disciples and imitators is another matter. Contemporaneously, he has had an impressive impact on a wide array of moderate and Trumpist conservative authors. Jordan Peterson frequently cites Nietzsche in his work, typically to describe contemporary leftism as motivated by destructive ressentiment .[39] Dinesh D’Souza makes a rather lazy stab at Nietzschean cultural commentary, upholding a kind of social conservative Christianity while simultaneously chastising Nordic social democracy as banal society of ‘last men’.[40]    On the far right, Nietzsche has had an impressive impact. In early 20th-century Germany, Heidegger, Spengler, Schmitt, and many others were deeply moved by his gloomy denunciations of impending nihilism and cultural decay.[41] Julius Evola rhapsodises in a recognisably Nietzschean key when he describes ‘the advent of Christianity [as] representing a fall; its advent characterised a special form of that spiritual emasculation typical of the cycles of a lunar and priestly type’.[42] So too does the online radical rightist ‘Lom3z’ when he describes the progressive ‘longhouse’ as distrusting ‘ overt ambition. It censures the drive to assert oneself on the world, to strike out for conquest and expansion. Male competition and the hierarchies that drive it are unwelcome. Even constructive expressions of these instincts are deemed toxic, patriarchal, or even racist’.[43] Such writings show that Nietzsche’s most depressing talent—his ability to inspire a host of milquetoast racist and misogynistic imitators—is very much alive in the 2020s.   Nietzsche is a foundational figure for many, including myself. There can be no serious thinking worthy of the name without him. But serious thinking requires his progressive and liberal readers to recognise that Nietzsche is not on side with their ambitions. Right Nietzscheans have known this for a long time. If there is to be an effective left-Nietzschean politics in the 21st century, it must learn this hard truth as well. Left-Nietzscheans can accept Nietzsche’s critical ruminations about mass ressentiment  and recognize accordingly that a politics based on eating the rich or sticking it to the man is unlikely to produce much good in the long run. We can reappropriate his work in interesting ways to foreground the way right-wing ressentiment  takes on its own distinctive forms, including the various forms of vitriolic right-Nietzscheanism on the march today. Christian socialists—a movement which saw a resurgence with the Presidential campaign of Cornel West—can appreciate Nietzsche’s profound reflection on the elective affinity between Christian egalitarianism and the emergence of the great secular progressive movements. But to the Nietzsche who megalomaniacally declared that there are ‘unfit peoples’ suitable only as slaves and cannon fodder in wars the world has never seen we can only offer the kiss of forgiveness. Matt McManus Matt McManus is a Lecturer in Political Science at the University of Michigan. He is the author of The Political Right and Equality and The Political Theory of Liberal Socialism , amongst other books. [1] Friedrich Nietzsche, The Will to Power (Walter Kaufmann tr, Vintage Books 1968) 287. [2] Hugo Drochon, ‘Why Nietzsche Has Once Again Become An Inspiration To The Far Right’ Australian Financial Review (Sydney, 20 September 2018) < https://www.afr.com/life-and-luxury/arts-and-culture/why-nietzsche-has-once-again-become-an-inspiration-to-the-farright-20180903-h14v90 > accessed 2 August 2023. [3] Richard Evans, The Coming of the Third Reich (Penguin 2005) 39-40. [4] Walter Kaufmann, Nietzsche: Philosopher, Psychologist, Anti-Christ (Princeton University Press 2013). [5] See Michel Foucault, The Foucault Reader  (Paul Rabinow ed, Pantheon Books 1984); Gilles Deleuze and Félix Guattari, Anti-Oedipus: Capitalism and Schizophrenia. (Penguin 2009); Gilles Deleuze, Nietzsche and Philosophy  (Hugh Tomlinson tr, Columbia University Press 1983). [6] Mark Sedgwick, Key Thinkers of the Radical Right: Behind the New Threat to Liberal Democracy (Oxford University Press 2018) xv. [7] See Ronald Beiner, Dangerous Minds: Nietzsche, Heidegger, and the Return of the Alt Right (University of Pennsylvania Press 2018). [8] Friedrich Nietzsche, The Twilight of the Idols and the Antichrist: or How to Philosophize with a Hammer (Penguin 1990) 168-9. [9] Friedrich Nietzsche, Human All Too Human Part II (Paul V Cohn tr, MacMillan 1913) 69. [10] Keith Ansell-Pearson, An Introduction to Nietzsche as Political Thinker  (Cambridge University Press 1994) 29. [11] As the opening quote makes clear, this individualist reading of Nietzsche runs against his own self-conception. [12] Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton University Press 1995). [13] See Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan   tr, Vintage Books 1975). [14] See Wendy Brown, In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West (Columbia University Press 2019). [15] Richard Rorty, Philosophy and Social Hope (Penguin 1999) 4-5. [16] See Alasdair MacIntyre, After Virtue: A Study in Moral Theory (3rd edn, University of Notre-Dame Press 2007). [17] See Charles Taylor, A Secular Age. (Belknap Press 2007); Matthew McManus, The Emergence of Postmodernity (Palgrave MacMillan 2022). [18] Friedrich Nietzsche, ‘The Genealogy of Morals’ in Basic Writings of Nietzsche (Walter Kaufmann tr, The Modern Library 2000) 597. [19] Ibid. [20] These efforts have in turn provoked a response from scholars who insist on the impossibility of any such fusion, and even argue that attempting it may be politically misguided or dangerous. See Nancy S Love, Marx, Nietzsche, and Modernity (Columbia University Press 1986). [21] See Deleuze and Guattari (n 5); Gilles Deleuze and Félix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia (Brian Massumi   tr, University of Minnesota Press 2011). [22] See Jonas Ceika, How to Philosophize with a Hammer and Sickle: Nietzsche and Marx for the Twenty-First Century  (Repeater Books 2021) 71. [23] Nietzsche (n 1) 872. [24] Domenico Losurdo, Nietzsche, The Aristocratic Rebel (Gregor Benton tr, Haymarket 2020). [25] Friedrich Nietzsche, Beyond Good and Evil  (Walter Kaufmann tr, Penguin Books 1990) 192. [26] See Hugo Drochon, Nietzsche’s Great Politics (Princeton University Press 2016). [27] See Friedrich Nietzsche, ‘Ecce Homo’ in Basic Writings of Nietzsche  (Walter Kaufmann tr, The Modern Library 2000) 783. [28] See Robert O Paxton, The Anatomy of Fascism (Vintage Books 2004). [29] Nietzsche (n 8) 186. [30] Nietzsche (n 8) 106  [31] Friedrich Nietzsche, ‘The Birth of Tragedy’ in Basic Writings of Nietzsche (Walter Kaufmann tr, The Modern Library 2000) 88. [32] See Nietzsche (n 18). [33] Nietzsche (n 1) 513. [34] Nietzsche (n 8) 103-4. [35] Nietzsche (n 8) 191. [36] See Don Herzog. Poisoning the Minds of the Lower Orders (Princeton, NJ: Princeton University Press, 2000) [37] Nietzsche (n 8) 168-9. [38] See Corey Robin, The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump (Oxford University Press 2017). [39] Jordan Peterson,  Beyond Order: Twelve More Rules for Life (Random House Canada 2021) 162. [40] Dinesh D’Souza, United States of Socialism: Who’s Behind It. Why It’s Evil. How to Stop It (All Points Books 2020) 137. [41] See Sedgwick (n 6). [42] Julius Evola, Revolt Against the Modern World  (Guido Stucco tr, Inner Traditions International 1995) 283. [43] Lom3z, ‘What is the Longhouse?’ First Things (New York, 16 February 2023) < https://www.firstthings.com/web-exclusives/2023/02/what-is-the-longhouse > accessed 2 August 2023.

The Cambridge Journal of Law, Politics, and Art is pleased to announce its 2025 Essay Prizes in Law, Politics, and Art.   An internationally recognised, multidisciplinary journal based in the University of Cambridge and affiliated with Trinity College, the CJLPA  fosters a unique dialogue between law, politics, and art, bridging theory and practice, and robustly promoting freedom of expression. Contributors include Supreme Court judges, Nobel laureates, leading political figures, renowned artists, critics, and art historians.   Open across the three major disciplines covered in the Journal , this competition invites submissions from undergraduate students at the University of Cambridge.   Essay topics:   With separate prizes for each discipline , participants are invited to submit essays on one  of the two questions: Law: ‘He who saves his country, violates no law’ (attributed to Napoleon Bonaparte, 1769–1821). Discuss. Should AI replace human judges?   Politics: ‘And so tyranny naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme form of liberty’ (Plato, Republic , trans. Jowett). Discuss. Is climate change shaping international relations? If so, how? Art: Does the art market define what is or isn’t art? Restitution of the Elgin Marbles should be ‘freely offered as a homage to the indivisibility of art and—why not say it without embarrassment?—of justice, too’ (Christopher Hitchens, 1949–2011). Discuss. Eligibility:   To enter the competition, participants must:   Be an undergraduate student enrolled at the University of Cambridge. Submit an original, unpublished essay that is not under consideration elsewhere. Follow CJLPA on one of our social media platforms and share or repost the competition announcement.   Submission Guidelines:   Word limit: 3,000 words (excluding footnotes and bibliography). Formatting: Times New Roman, 12 pt, double-spaced, in any widely-used referencing style. Submissions must be in PDF format and sent via email to generaleditors@cjlpa.org  with the subject line ‘ CJLPA  [Law / Politics / Arts] Essay Prize Submission – [Your Name]’. Essays will be evaluated based on originality, clarity of argument, and depth of analysis.   Prize:   For each discipline, a cash prize of £250 . An opportunity to have your work read by eminent experts in the field. Publication in CJLPA  alongside leading scholars and practitioners. Honourable mentions may also be considered for publication.   Deadline:   20 June 2025.

Russell Barnes is a Director and Producer for the documentary production company ClearStory. Clare Burns has worked in television production for 20 years and is now Production Manager at the documentary production company ClearStory. ClearStory's series  African Renaissance , on art in Ethiopia, Senegal, and Kenya, aired in 2020. Fig 1. Afua Hirsch with four descendants of the Saint Louis signares. © ClearStory.  In 2015, director and producer Russell Barnes pitched a documentary to the BBC about the lucrative and sometimes ‘dodgy’ trade in indigenous art from Africa and Oceania, which is often pejoratively termed ‘tribal art’. Barnes summarises his aims when we speak over video call:   We were interested in looking at extraordinary things that turn up in Britain and then tracing them back to where they came from, back to their ancestral roots, if you like. This idea of ‘tribal art’. Even that phrase is just...it feels weird saying it. We were asking, ‘Why is it called this?’, and thinking about how it’s been appropriated over the years.   The original premise proved something of a non-starter with commissioning editors, but it did lead to further conversations about shifting the focus away from Britain and towards the artists and cultures behind these works. The outcome was two separate series exploring the relationships between art, colonialism, and the postcolonial era. The first, Oceans Apart , was broadcast in 2018 and followed Cambridge academic Dr James Fox as he explored the clash of European and Pacific art in the colonial period. The second became African Renaissance: When Art Meets Power , presented by journalist and cultural commentator Afua Hirsch and broadcast in August 2020.   A joyful, unapologetic vision of what politically engaged art documentaries can be, African Renaissance follows Hirsch as she explores Ethiopia, Senegal, and Kenya through their vibrant creative cultures. While the films’ geographical focus is markedly different from that pitched five years earlier, the focus is on confronting the same difficult questions about European colonialism. The perspective, however, is rather different. Barnes says:   Rather than approaching it as a kind of straightforward art history from a western perspective, we wanted to make it about a dialogue between cultures. Afua is the perfect guide because she’s half Ghanaian and has a real affinity with and interest in pan-Africanism. So we had something that was very much about now with somebody who’s got distinct and interesting views about these things, but was also willing to explore.   At one point in the Senegal film, Hirsch interviews Germaine Acogny, an internationally renowned choreographer who is often described as the mother of contemporary African dance.[1] ‘What is the spirit here that makes our art so powerful?’, she asks Acogny. Her use of ‘our’, not ‘your’, speaks volumes.   Days before I speak to Barnes and the series’ production manager Clare Burns, African Renaissance  receives a nomination for the RTS Programme Awards. Barnes reflects:   I think what people really responded to was the fact that this was a really positive vision of Africa, a continent which is so often approached with this kind of hand-wringing ‘poor Africa’ attitude. It was just brilliant to be able to tell the other side of the story. And you do feel, when you’re there, this energy, extraordinary energy, a place that’s really developing fast, and in fascinating ways.   *   Working on a modest BBC Four budget, most of the initial research and planning had to take place in London. Only with the key artists, themes, and stories all worked out could Barnes and fellow producer Alex Brisland approach local production managers with a list of requests. Barnes flew out to Ethiopia to direct the first episode, and Burns joined the team in Senegal. She jokes:   Because I’m managing the budget, it’s not really a very good look to just send myself on shoots for the fun of it. But because I can speak some French, I went out as part of the crew and helped to liaise with local crew and contributors. I think I earned my keep!   The team did need to be multilingual. Hirsch had lived in Senegal and could build a rapport with her interviewees by speaking to them in French, the official language of Senegal. However, Wolof, Senegal’s real lingua franca, was also used widely. Burns adds:   One interview was in another local, lesser-known dialect, which was a challenge when we later needed transcriptions for the edit. The elderly mother of one of the local crew helped with translating that one. I sent him clips over WhatsApp which he played to his mum, and he sent back voice messages in French, which I then translated. It was a slightly long-winded process, but it worked!   Each episode was filmed in just ten days, partly because of staff availability: one of the field producers for the Ethiopia episode, Zablon Beyene, had to film an episode of Amazon’s The Grand Tour  immediately afterwards. Barnes tells me:   For our BBC Four arts travelogues, our rule of thumb was always that you do a sequence every half day. If you’ve got ten days, that’s potentially 20 sequences, and then with a bit of archive, that will be enough to make you a 59-minute BBC Four film. What’s incredible, and what we felt every single time our local producers came back with lots of amazing options, was that there weren’t any bad options. It was always, ‘What are we gonna not do?’, and that was so much to do with logistics and really working out travel times.   It may all sound rather mathematical, but events soon intervened. Burns’ crew was not able to get an overhead shot of the African Renaissance Monument in Dakar, because of difficulties sending up a drone. Burns tells me of her disappointment:   It’s the tallest statue in Africa, so of course we were very keen to do justice to the size and scale of the monument. We wanted to start the sequence with some beautiful sweeping drone shots. We had all the necessary permits, but it was too windy on the day we were there to fly the drone safely. I did carry on talking to one of the local producers afterwards, but it was not to be. He went back there later with his own drone but actually had it confiscated by the police.   In Ethiopia, a planned visit to the remote fourth-century Church of St John in Tigray was delayed when Hirsch went down with food poisoning. The rest of the team spent a day taking aerial shots of the local landscape while their presenter was ill in her hotel, and it was touch and go whether they would be able to make the climb up to the church the next day. Barnes remarks that this did add a certain poignancy:   We did want to capture the inaccessibility, so strangely, that sense of how hard it was—with Afua being ill, schlepping up the hill with lots of equipment—suited the editorial theme. It really captured what an extraordinary place it was and how hard it is to get there—an hour of walking uphill.   One of the church elders, Melake Genet Adhana, had been making that same journey for 85 years. ‘I’ve been coming here all my life’, he says simply when Hirsch asks him about it in the film. ‘I will never stop coming here and will finish my life in this place’.   The three episodes present various different ways of approaching and coexisting with African history. In the Senegal episode we are introduced to Diabel Cissokho, a musician who played at the Jazz Cafe in London just before the pandemic. Cissokho is internationally renowned for playing the kora, a traditional West African stringed instrument. He was born into a long line of griots , a caste of people tasked with keeping the community’s stories and traditions alive through poetry and music. ‘Because of the nature of the oral history, he straddles the past, the present and arguably the future in Senegal’, Burns says. Elsewhere in the country, in the city of Saint Louis, we meet four descendants of the nineteenth-century signares , affluent biracial women who held influential roles in society. These modern-day signares  use their spare time to dress up in the bright silks and filigree jewellery emblematic of their ancestors (fig 1). One, Marie-Madeleine Diallo, is a famous actress in Senegal and attracts lots of tourists wanting to take photographs. Another, Ariane Re’aux, runs a hotel in Saint Louis where the team stayed.   Then there are also dark moments, when more painful histories are confronted head on. We visit Gorée Island, a former base for the transatlantic slave trade just two miles off the coast of Dakar, Senegal’s capital. Hirsch comments in the film:   I think it’s so important that this island and the House of Slaves that still stands here [have] been preserved as a World Heritage Site, and it’s good to see people coming here and engaging with that. At the same time, I can’t help but feel a bit uneasy at the ways tourists have this experience, seeing Gorée Island as a nice day out.   In the Kenya episode, Hirsch visits Mweru Girls’ School, which shares its grounds with the former Mweru Works Camp set up by the British colonial government in the mid-twentieth century to hold suspected Mau Mau supporters. The British did not actually construct the buildings themselves, historian Chao Tayiana tells Hirsch: the detainees had to make the bricks for their own prison.   In the Ethiopia episode, the artist Eshetu Tiruneh gives us another haunting moment. Tiruneh painted Ethiopia’s experience of famine. In the West, as the film points out, what we generally remember most about the famines is Live Aid, a charity concert at which not a single African band was invited to play. We have seen the Church of St John and been reminded that it, along with Ethiopian Orthodox Christianity as a whole, predates the Vatican by centuries. It is therefore particularly jarring to hear a clip from ‘Do They Know It’s Christmas? ’ . In Tiruneh’s 1974 piece Victims of the Famine , there are no white saviours to be seen: Ethiopians support and physically carry each other through the suffering. Barnes recalls:   I was very moved by it, and I think Afua reacted to it very strongly as well. And he’d had such a difficult story. The Derg [the military junta that ruled Ethiopia between 1974 and 1991] sent him off to Moscow to be trained after Haile Selassie was toppled, so he had this life that had been twisted and turned by events, and by history, and it was fascinating talking to him, a very quiet man, very softly spoken, very sensitive, a man who’d had to kind of turn with the wind, in the very harsh politics of Ethiopia. I just thought, ‘Actually, this is exactly where the series needs to be’, this very different conception of it, from the African perspective, of who Ethiopians are, rather than how people like Bob Geldof saw Ethiopia in the 80s...   When African Renaissance  aired in late summer 2020, it did so in the wake of months of Black Lives Matter demonstrations after the death of George Floyd in Minneapolis. In June, protesters had toppled the statue of Bristolian slave trader Edward Colston into the Avon. It is difficult not to see the films as part of that broader conversation about race, colonialism, and art, especially since their release on the BBC coincided with a rerelease of historian David Olusoga’s series Black and British: A Forgotten History . Barnes is keen to emphasise that the African Renaissance was pitched long before 2020, but, he says, the change in attitude fits with the ‘zeitgeist’.   Colonialism, and the colonial attitude, dismisses this art as ‘tribal art’ and as art that can be collected from all round the world and brought into Western museums and bought by collectors and just sold as a commodity, without thinking through what that art means in the context of where it’s made, and why it was made, and who it was made by. This series was meant to be the antidote to that, predicated on the idea that there’s this amazing, lively, dynamic, powerful art scene in Africa that’s not properly known and covered.   *   On 5 March 2021, the day Barnes, Burns, and I meet, the NGO Human Rights Watch calls on the United Nations to establish an independent inquiry into war crimes and possible crimes against humanity in Tigray.[2] It alleges that in November 2020, Eritrean and Ethiopian armed forces massacred hundreds of civilians in the town of Axum, and that the incumbent Ethiopian government has kept this covered up. This appalling event, along with the many other episodes of violence in the region that have occurred since the start of the war between the Ethiopian government and Tigray secessionists, casts a certain shadow on the central thesis of African Renaissance . It is bitterly ironic that in autumn 2019, while the   production team was editing the film, Ethiopia’s prime minister Abiy Ahmed had just been awarded the Nobel Peace Prize.   The crew had filmed in Axum, outside the The Church of Our Lady Mary of Zion where the Ark of the Covenant is supposedly located. The church was a particular target of the armed forces. I ask if this changes how the team thought about that episode. Barnes replies:   Had we been aware of what was to come, I think we would have covered things differently, but obviously it’s impossible to see that future. It was completely weird that we’d finished the series and it was about to go out. And obviously that would have changed the nuance and coloured our end conclusions, no doubt about it. We   would have been much more circumspect, I think, but   at the time we had no sense of any imminent conflict. It   didn’t feel like that at all.   Ethiopia once again faces an uncertain future, proof enough that it is impossible to squeeze Africa’s complexities into three 60-minute episodes. In spite of the programme’s ambitious title, its makers stress that they were only offering a snapshot. They hope to make a second series, looking at Nigeria and South Africa. Barnes explains: ‘It’s such a huge continent, so diverse, and we obviously tried to suggest that at the beginning of each film: we can only do a selection’. If there is one thing to take from that initial selection, it is the extraordinary boldness, creativity, and resilience of Africa and its people: rebirth not just once, but continually. Helen Grant, the interviewer, is a fourth-year undergraduate in History and Modern Languages at Murray Edwards College, Cambridge. She is passionate about education, art, and using humour and visual media to connect with people and share ideas. She holds a number of roles with the edtech organisation Write the World, and spent her year abroad working as an editorial assistant for Hermès in Paris. [1] ‘Germaine Acogny’ ( École des sables ) < https://ecoledessables.org/about-us/our-team/germaine-acogny > accessed 13 March 2021. [2] ‘Ethiopia: Eritrean Forces Massacre Tigray Civilians’ ( Human Rights Watch , 5 March 2021) < https://www.hrw.org/news/2021/03/05/ethiopia-eritrean-forces-massacre-tigray-civilians > accessed 13 March 2021.

Modern commerce takes place at supersonic speed. It therefore surprises many that most of the world’s traded goods are still, at some point, carried on a container ship. Shipping by sea has been the primary means to move items around the planet for much of human history. In the present, 11 billion tons of goods are shipped each year,[1] representing around 80% of trade by volume.[2] Given how many items are shipped, then, it is unsurprising that many are lost at sea. Romantic stories of shipwrecks filled with treasure and priceless artworks persist for a reason: they are not far from the truth.   One cannot mention lost treasures in international waters without mentioning the sinking of the RMS Titanic.  While this was a human tragedy of unprecedented scale, the amount of artwork lost is also notable. The Titanic was a luxurious cruise liner on its maiden voyage to New York, and carried many wealthy travellers. It is therefore unsurprising that estimates of the value of the art on board often exceed £200 million. There have been numerous displays of recovered items. Even the most mundane items are now considered precious records of the tragedy.   The Mary Rose , another famous wreck, was also carrying a good deal of art. The Tudor carrack was lost in the Solent in 1545. Its salvaging was one of the most expensive projects of maritime archaeology. The Mary Rose  it was one of the first wrecks to be protected under the Protection   of Wrecks Act 1983. It was finally raised in 1982, and was found to contain many artefacts providing valuable insight into Tudor life.[3]   The Spanish frigate Nuestra Señora de las Mercedes  is another wreck noted for its salvage. It was sunk by the British off the coast of Portugal in 1804. It was recovered in 2007, and contained 600,000 silver and gold coins. The salvors quietly brought these to the US.[4] However, the Kingdom of Spain took the case to court, and the salvors were ordered to return the coins.[5] This decision was upheld at appeal.   Sculptures generally preserve better than other artworks under the sea. Many sculptures are recovered from shallower waters, especially the Mediterranean.[6] It is enjoyable simply to list such stories, but the purpose of this article is to summarise how the law treats shipwrecks and their valuable cargo. Who owns treasures found at sea, particularly under UK law?   International salvage   To begin with, it is worth considering how salvage and lost artworks are treated in international law.   The concept of ‘maritime salvage’ is pervasive. Maritime salvage is the right of a volunteer to a reward if they assist a ship in danger. By contrast, it is trite law that a person who voluntarily saves the property of another on land is not entitled to reward or compensation. The right to maritime salvage is upheld by English admiralty law. However, it has also been enshrined in international law through customary law, commonly accepted contracts,[7] and international treaties.[8] After all, it is politically expedient to have different rules govern this scenario on sea from on land. The sea is hazardous, and financial incentives encourage people to help vessels in need.   Maritime salvage only covers property, including cargo, if it is in danger. Therefore, it does not generally extend to historical wrecks. Wrecks may be dealt with by treaty where they pose a risk to navigation or the environment, but this is rare for historical wrecks.[9] Under English law, the wreck remains the property of her owner at the time of sinking, and under the jurisdiction of her flag state. However, not all jurisdictions agree.   Some wrecks are protected by individual treaties. In the case of the Titanic,  the UK and US governments have agreed by treaty they   will each protect the wreck and preserve it as a memorial. The treaty was signed by the UK in 2003, but only came into force in 2019 following ratification by the US.[10] Whether it has adequate ‘teeth’ remains to be seen.   The arrangements made for the Titanic are unusual. International law retains a varied and complex arrangement of treaty, customary law, and rewards offered to salvors. The United Nations Convention on the Law of the Sea 1982 places a duty on states to protect archaeological and historic objects. However, it explicitly excludes objects with identifiable owners. The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 represents a more recent effort to ‘enable states to better protect their submerged cultural heritage’. It is intended to provide an internationally agreed basis for dealing with historical wrecks, and it states that they are not subject to maritime salvage. Unfortunately, this Convention was heavily criticised for its broad language and has not gained international acceptance.[11]   Wrecks in the UK   I turn now to home waters. Some of the world’s busiest shipping lanes pass through the UK’s territorial waters. It is therefore unsurprising that there are thousands of wrecked ships and aircraft around the UK coast. The UK has passed statutes intended to protect wrecks and deal with the complexities of ownership. How, then, are lost treasures and artworks dealt with when recovered in the UK’s territorial waters?[12]   The Merchant Shipping Act 1995   The main piece of legislation concerning UK wrecks is the Merchant Shipping Act 1995, especially Part IX. The Act defines the role of the ‘Receiver of Wreck’, an official in the Maritime and Coastguard Agency who administers the law of wrecks and salvage. The Act prescribes that any finder of ‘wreck material’ in the UK report their find to the Receiver of Wreck. The Act states:   Duties of finder etc. of wreck.   1. If any person finds or takes possession of any wreck in United Kingdom waters or finds or takes possession of any wreck outside United Kingdom waters and brings it within those waters he shall— a. if he is the owner of it, give notice to the receiver stating that he has found or taken possession of it and describing the marks by which it may be recognised; b. if he is not the owner of it, give notice to the receiver that he has found or taken possession of it and, as directed by the receiver, either hold it to the receiver’s order or deliver it to the receiver.[13]   Subsection (2) criminalises the failure to report a wreck without reasonable excuse.   It should be noted that ‘wreck’ is not limited to shipwrecks. It includes ‘jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal water’.[14] These terms have clear meaning in maritime law. ‘Jetsam’ denotes goods cast overboard to lighten a vessel, even if the vessel is lost. ‘Flotsam’ denotes goods that remain afloat after their ship has sunk. ‘Lagan’ is similar to jetsam: it denotes goods, cast overboard from a ship that perishes, which have been buoyed that they be recovered later. Finally, ‘derelict’ denotes all property, ship or cargo, that has been abandoned without hope of recovery. Derelict is the most relevant to historical shipwrecks and their cargo.   Under English law, the owner of a ship that is wrecked also owns the wreck. Therefore, the Receiver of Wreck will track down the owner of the wrecked ship and its cargo and ensure that they receive a fair salvage award, if one is applicable. If the wreck remains unclaimed for one year, it becomes Crown property.[15]   The Protection of Wrecks Act 1973 and The Protection of Military Remains Act 1986   The Protection of Wrecks Act 1973 lets the UK designate specific wrecks as ‘protected wrecks’ if they have historical, archaeological, or artistic value. Diving is prohibited around such wrecks unless a special licence is obtained.[16] The Act contains a separate mechanism prohibiting access to dangerous wrecks.[17] It also requires that the exact location of a wreck become a matter of public record. However, this encourages treasure hunters. Perhaps the best protection for famous wrecks would be to keep their locations mysterious.   The military remains of British persons, or of those operating from British ships, are now protected under the Protection of Military Remains Act 1986. The Act applies even if they lie outside of UK territorial waters. This highlights a key issue.   Both Acts create legal regimes of protection and regulation. However, they are in practice very difficult to enforce, since wrecks are often in isolated locations.   Closing remarks   The law encompassing maritime wrecks and historical artefacts is complex. By its very nature it raises difficult jurisdictional issues, since shipwrecks do not conveniently conform to the international boundaries of their flag state.   States are increasingly taking steps to protect their cultural heritage. Many, including the UK, have passed legislation to protect culturally significant shipwrecks. However, approaches to such legislation have varied around the world, and to date, attempts to harmonise the international law have been without significant success.   The good news is that many states have passed domestic measures to protect important shipwrecks and ensure that their cultural heritage is preserved.   Whatever the jurisdiction and the legal issues, it is clear that historical wrecks present significant cultural value to the world and must be preserved and protected as much as possible.   The sea is a vast and wondrous place, filled with mystery, danger, and hardship. The romantic notion of treasures on and under the high seas is far from a historical fiction, and seems destined to persist far into the future. Serhan Handani   Serhan Handani was admitted as a solicitor in 2018 and currently maintains a civil litigation practice at Bramsdon & Childs. He completed an LLM in Maritime Law at the University of Southampton and has previously worked in seafarers’ rights initiatives and with the Maritime and Coastguard Agency. Serhan retains a keen interest in the field of maritime law. [1] International Chamber of Shipping, ‘Shipping and world trade: driving prosperity’ < https://www.ics-shipping.org/shipping-fact/shipping-and-world-trade-driving-prosperity/ > accessed 1 March 2021. [2] United Nations, UNCTAD Review of Maritime Transport 2020  20. accessed 1 March 2021. [3] See David Childs, The Warship  Mary Rose : The Life and Times of King Henry VIII’s Flagship  (Chatham Publishing 2007). [4] Kimberley Alderman, ‘Federal Court Orders Treasure Hunters Return Coin Trove to Spain’ ( Cultural Property & Archaeology Law , 20 February 2012) < https://culturalpropertylaw.wordpress.com/2012/02/20/federal-court-orders-treasure-hunters-return-coin-trove-to-spain/ > accessed 1 March 2021. [5]  Odyssey Marine Exploration, Inc v The Unidentified Shipwrecked Vessel et al  (Odyssey II), 657 F3d 1159 (2011). [6] The Antikythera wreck is an example. Lost off the Greek coast in the first century BC, it was discovered in 1900 with many sculptures. [7] Notably the Lloyd’s Open Form (LOF). [8] The 1989 Salvage Convention is the most important of the recent treaties. [9] See the Nairobi Wreck Removal Convention 2007. [10] Secretary of State for Foreign and Commonwealth Affairs, Agreement concerning the Shipwrecked Vessel RMS Titanic  (Treaty Series 8, 2019). [11] See Hayley Roberts, ‘The British Ratification of the Underwater Heritage Convention: Problems and Prospects’ (2018) 67(4) International and Commercial Law Quarterly 833. [12] I use ‘territorial waters’ to denote an area of sea over which a state has jurisdiction. This includes ‘territorial sea’, ‘contiguous zones’, and ‘exclusive economic area’. These terms are defined in the United Nations Convention on the Law of the Sea 1982. A state’s territorial sea extends 12 nautical miles from its ‘baseline’. A state’s exclusive economic zone extends up to 200 nautical miles from its ‘baseline’. See Marine Regions < https://www.marineregions.org/eezmapper.php > for a useful map of these zones. [13] Merchant Shipping Act 1995 s 236. [14] ibid s 255. [15] ibid s 241. [16] Protection of Wrecks Act 1973 s 1. [17] ibid s 2.

Introduction   The 2015 Paris Agreement was a pivotal moment in the struggle against climate change. While previous climate agreements had failed to unify the nations of the world in effecting concerted emissions reductions policies, Paris marked a new era of optimism. An unprecedented 196 nations signed a legally binding treaty with the goal of preventing an average global temperature rise of more than 2°C.[1] Of particular significance was Article 6.2, which detailed the use of ‘internationally transferred mitigation outcomes towards nationally determined contributions’.[2] In other words, this referred to the implementation of international market-based carbon pricing mechanisms to deliver emissions reductions.   The modus operandi behind carbon pricing is to account for the external cost to society of producing emissions (externalities) by internalising it into the price of conducting the polluting activity.[3] The price of goods in an economy experiencing a carbon pricing policy will therefore partially mirror the overall greenhouse gas emissions embedded within the goods.[4] There is a wealth of literature concerning different carbon pricing strategies, but carbon taxes and emissions trading schemes (ETSs) are by far the most prevalent.[5] In both of these market-based systems, a price is imposed for each tonne of carbon dioxide (CO2) emitted by polluters, to incentivise emissions abatement at the lowest cost. More than 90 countries have declared an intention to develop carbon pricing policies, and the World Bank states that there are 64 existing pricing initiatives, covering 22.3% of global emissions.[6] However, the vast majority of emissions remain unpriced, which can result in a phenomenon known as carbon leakage.   Carbon (or emissions) leakage is the relocation of emissions from one jurisdiction enforcing a carbon price to another in which there is a lesser or no carbon price.[7] Emissions leakage can occur via two primary routes. a) A reduction in demand for fossil fuels in emissions-abating countries may provoke an increased demand for them in non-abating countries following a drop in fuel prices. b) Energy-intensive and trade-exposed (EITE) industries may relocate to non-abating jurisdictions because of competition from overseas industries that face lower or no carbon prices.[8] A border carbon adjustment (BCA) can be implemented to combat the latter, and more indirectly, the former. A BCA taxes imports from non-abating countries, offers rebates for exports to these countries based on the emissions intensity of the products, or does both.[9] A BCA strives to level the international playing field by transferring the onus of emissions abatement to non-abating countries while establishing trade neutrality between taxed domestic and untaxed foreign goods.[10] While BCAs may be well-intentioned, the process of implementing them on the global stage is fraught with legal and political challenges which may inhibit their development, or even undo the international progress on climate that was achieved in Paris.   Border carbon adjustments   Besides BCAs, there are many other mechanisms with which to counter emissions leakage. These include output-based rebates (OBRs), free allocations of emissions credits, and specific industry exemptions from carbon pricing. Modelling by Christoph Böhringer, Jared C Carbone, and Thomas F Rutherford found that although all of these instruments go some way to reduce leakage, BCAs were the most effective.[11] In the 2012 Stanford Energy Modelling Forum, a consortium of a dozen models showed that BCAs could reduce leakage by 2–12%, with an average value of 8%, by levying a fee on the carbon content of imports.[12] These results indicate that, although effective, the fuel leakage channel and other economic drivers may be more influential in steering emissions leakage.[13]   The efficacy of BCAs, therefore, must be balanced against the complex and varied impacts that imposing them have. The key areas to be considered are competitiveness, international trade relations, and distributive impacts, although there are strong linkages between these areas.   Competitiveness   The driving force behind the implementation of a BCA is to ensure that domestic firms are not disadvantaged when competing against international organisations that are not subject to equivalent emissions regulations. As such, a BCA is considered by many to be a form of protectionism, of disputed legality.   The WTO General Agreement on Tariffs and Trade (GATT) Article I (‘most favoured nation clause’) concerning national treatment prohibits discrimination against ‘like’ products of different origins.[14] Article III concerns whether process and production methods (PPMs) affect the ‘like-ness’ of products created by processes of different carbon emissions intensity, and whether different product origins should be subject to this rule.[15] It has subsequently been argued that general discrimination based on PPMs would not be valid without a GATT exception, although this is contested.[16] GATT Article XX permits exceptions to Article I to protect human, animal, and plant life or to conserve finite natural resources.[17] The validity of this statement is likewise subject to heated debate, although many feel that this is a legitimate exception.   Furthermore, GATT Article II(a) permits members to impose a charge equivalent to an existing internal tax via an indirect  tax.[18] Only indirect taxes are permitted to be adjusted on the border. It must therefore be established whether a BCA qualifies as direct or indirect, as direct taxes would be viewed as a subsidy and not an adjustment under the Agreement on Subsidies and Countervailing Measures (SCM).[19] The major distinction between the two is that indirect taxes are generally mirrored in the price of the product, while direct taxes are not.[20] The majority of scholars, then, do accept that a BCA qualifies as an indirect tax, and that it would therefore be allowed, in theory, under these regulations.[21]   Ultimately, these exceptions are not clear-cut, and the nuances surrounding them are debated at length. It is uncertain exactly what constitutes unfair treatment of international exporters, and whether putting a higher fee on more emissions-intensive imported goods than on cleaner domestic goods, contravenes these trade rules.[22] WTO case law suggests that setting assumed emissions intensity levels for specific countries would qualify as discrimination, but that setting levels for the carbon content of specific foreign products might be permissible.[23] Here, though, there is a difficulty in determining the embedded carbon content of foreign goods, as this information is not always readily accessible. This adds another layer of administrative complexity and cost to proceedings.[24]   It is also worth investigating whether climate policy adds a significant burden to domestic producers which could result in relocation to other jurisdictions. Currently almost half of carbon pricing initiatives hold a value of carbon of below $10 per tonne, which is often of lesser significance when compared with labour, transportation, and energy costs of business.[25] It is likely that these other factors contribute more meaningfully in decisions for more energy-intensive companies to relocate. However, some schemes surging in price—the EU ETS and UK ETS have surpassed €50 and £50 per tonne respectively—this factor may become more significant in the coming decade.[26]   By contrast, Henrik Horn and Petros C Mavroidis argue that promoting competitiveness of domestic firms is not a legitimate rationale for BCAs.[27] They state that the goals of competitiveness stand in stark contrast to the objectives of climate mitigation, for which a BCA would be implemented. Additionally, they argue that the literature naively assumes that BCAs will not serve protectionist purposes, whereas in the trade community it is accepted that the majority of BCA policies are in some way protectionistic. The fact that competitiveness and climate mitigation are so closely intertwined in a BCA means that a poorly designed policy may result in nothing more than a greenwashed protectionist policy.[28] Similarly, it may be challenging to extricate the different motives behind this policy, which may hinder its political and public acceptance. It is equally possible that a BCA that could be seen as overly protective of domestic industry may provoke an international political backlash that may impact trade relations and climate agreements.   International relations   Inevitably, the implementation of a BCA in one jurisdiction or bloc may cause tensions with other exporting nations depending on their exposure to the effects of the policy. The share of fossil fuels in the energy mix, the quantity of exports to the BCA-imposing region, and the emissions intensity of the exports will all determine the susceptibility of a nation’s trade.[29] For instance, India, China and OPEC nations—as large fossil fuel and manufacturing exporters— would likely oppose any such policy and perhaps impose retaliatory tariffs which could result in a trade war.[30] The Paris Agreement has always rested on unstable foundations, as demonstrated by the USA’s withdrawal in 2017, so it is plausible that a BCA seen as targeting a group of nations may result in a splintering, or even a reversal, of the work Paris has achieved.   Moreover, in the absence of a global emissions pricing scheme, different BCAs at different borders could result in a labyrinth of complex border adjustments that would frustrate international trade. North America illustrates the difficulties that this would entail should BCAs be established in the US or Canada. Because the US failed to ratify the Kyoto Protocol and rejected the 2009 Waxman-Markey Bill, it has introduced no economy-wide carbon price or emissions trading scheme.[31] Instead, individual states have pushed for specific mitigation options, such as the emissions trading scheme established in California, in what has been described as a wave of ‘new federalism’ by Dan Lashof, US President of the World Resources Institute.[32] By contrast, Canada has laid the plans for a progressive carbon tax set to reach CA $170 by 2030, and has numerous extant provincial sectoral policies. This does raise the question of how these two nations could navigate new BCAs or equivalent emissions abatement measures. With a myriad of different carbon pricing structures, it seems likely that trade channels may develop that avoid a BCA in states or provinces imposing such a high carbon price. Indeed, the economic and political complexity of trade adjustments that would arise between these two historically strong trading partners could outweigh any environmental benefits that could be had. Moreover, in no national jurisdiction is there one sole carbon price in place. Instead there are rich tapestries of regulations and climate policies. Should BCAs be implemented on a global scale, questions of how to evaluate and compare other nations’ climate policies will be asked and will undoubtedly lead to international disputes over trade.[33]   On the other hand, there is a school of thought that BCAs, rather than provoking division, might encourage non-abating countries to impose similar carbon pricing structures, or even to join a climate coalition of nations.[34] Indeed, by transferring the burden of emissions abatement to non-acting countries via a BCA, reductions can be achieved at the lowest global cost through ‘where-flexibility’, by increasing the global efficiency of abatement.[35] Yet this might also promote regional disparities.[36]   Distributive impacts   On shifting the onus of emissions reduction responsibility onto the shoulders of non-abating nations, it is argued that this may defy the ‘common but differentiated responsibility’ statement enshrined into law.[37] This UN declaration dictates that although all nations share similar climate aims, historically less economically developed countries should not bear equal responsibility for emissions abatement to polluting nations. It is suggested that less economically developed nations could be exempted from BCAs, although some argue that this would violate the aforementioned ‘Most Favoured Nation’ GATT principle.[38] Although the WTO ‘Enabling Clause’ permits some favourable treatment to these nations through policies aimed at advancing development, this is unlikely to fall within the remit of a BCA.[39]   The design and structure of a BCA would determine which industries and emissions were included within the policy’s bounds. Whether all greenhouse gas emissions contribute to the embedded emissions of goods, or only carbon dioxide, will disproportionately affect some nations. Madanmohan Ghosh, Deming Luo, Muhammad Shahid Siddiqui, and Yunfa Zhu demonstrated, using a general equilibrium model taking into account both CO2 and non-CO2 emissions sources, that nations with a strong agricultural contribution to GDP, such as Brazil, are more acutely affected by BCAs—two thirds of Brazil’s emissions stem from non-CO2 sources.[40] Despite global gains in cost efficiency, and reduced leakage rates, broad-based greenhouse gas BCAs are perhaps unlikely given their tendency to increase welfare disparity in large agricultural nations.   Given that a BCA’s raison d’être is to protect EITE industries, for reasons of pragmatism it is likely that BCA policies will focus solely on these sectors.[41] Because these industries have strong lobbying power, it is improbable that further manufacturing industries and sectors would be included. As a BCA is expanded, the benefits gained by a specific industry become smaller, because the export rebates offered are reduced. This would therefore erode the power base driving for the BCA.[42] However, a strong incentive for implementing carbon pricing policies such as ETSs or carbon taxes must be remembered: the revenue stream, which can be used to alleviate other distortionary taxes or in further low-carbon investments.[43] Indeed, there is a growing desire for this income to benefit low-income communities that disproportionately experience the effects of pollution.[44] However, rebates would ensure that a proportion of the finance generated by a BCA would support EITE industries instead. This could be seen as politically divisive, and could exacerbate welfare disparity in low-income communities.[45]   The EU Border Carbon Adjustment Mechanism (CBAM)   Despite many scholars having expressed doubt that BCAs will be established, we are now seeing the concept taking its first steps. Ursula von der Leyen, President of the European Commission, announced that the EU would set up a carbon border adjustment mechanism (CBAM), which is now expected to commence in 2023.[46] Initially, it will cover only EITE industries, but it will have inbuilt flexibility to expand in the future should there be an appetite for this.[47] Ahead of the COP26 (Conference of Parties) summit, and with many countries increasing their climate ambition and drive towards net zero, the establishment of the CBAM sends a clear signal to non-abating nations. There is a wealth of discussion and research on the topics covered in this article, on how to implement a BCA while maximising the environmental benefit and minimising the geopolitical, legal, and welfare-related backlash, and on how to fine-tune policy to ensure this.[48] Nevertheless, as might be expected, the BRICS countries have condemned the EU’s move to implement the CBAM. China, India, South Africa, and Brazil labelled the policy as ‘discriminatory’ in a joint statement, while Russia has cast doubt over the legality of the policy with respect to WTO rules.[49]   Additionally, for the CBAM to be permitted under WTO rules, a restructuring of the EU ETS may be required. Currently, a certain number of allowances is granted to EITE and other industries, free of charge, to prevent leakage. This is known as ‘grandfathering’.[50] It may need to be re-evaluated in light of a new border carbon policy, because of the preferential treatment EITE industries may receive should both policies be present.   Despite its detractors, the implementation and performance of the CBAM will be highly influential in guiding carbon pricing over the coming decades. Time will tell whether it will be accepted under WTO rules and whether this would bring a significant international backlash. Whether the CBAM has the power to unite or divide the nations of the world in fighting climate remains to be seen.   Conclusions   A BCA would be a novel weapon in the arsenal against climate change. Its promises in reducing leakage, bringing in revenue, and aligning global ambitions on climate make it an attractive proposition. However, its basis in WTO law, international relations, and welfare distribution must be evaluated and resolved lest it work against the very climate goals it is intended to achieve. The recently developed EU CBAM is the first real test the BCA has to endure. Its robustness and resolve will be scrutinised carefully on the world stage.   Ultimately, however, a BCA is only a second-best instrument that lies far from the potential that a global emissions trading scheme might achieve.[51] Given that this looks very unlikely, the EU CBAM may set a precedent in emissions pricing. However, rather than using a BCA to strong-arm international emissions reductions, many believe that linkages between pricing mechanisms in ‘carbon clubs’ could be employed instead to encourage international abatement.[52] Support is building for these clubs, but the variegated mosaic of unique market structures that exists may make it challenging to facilitate linkages in the coming years. The direction major economies take on this road will be instrumental in determining how the world addresses the climate crisis. The COP26 summit set to be held in Glasgow in November 2021, therefore, will be pivotal in outlining the roadmap for this target. It may be the most important conference since Paris in guiding effective climate policy towards a zero-emission global economy. Callum Winstock   Callum Winstock is an MSc student in Energy and Environment at Lancaster University. He completed an undergraduate degree in Chemistry at Durham University. He works alongside his studies as an analyst at CaliforniaCarbon.info, a US climate finance analysis company specialising in North American carbon markets. He is excited to contribute to the new energy transition and will begin working in a graduate role at EDF Energy in September 2021. [1] UNFCCC, ‘The Paris Agreement’ (2021) < https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement > accessed 20 May 2021. [2] United Nations, Paris Agreement (2015) < https://unfccc.int/sites/default/files/english_paris_agreement.pdf > accessed 20 May 2021. [3] James K Boyce, ‘Carbon Pricing: Effectiveness and Equity’ (2018) 150 Ecological Economics 52. [4] Andrea Baranzini, Jeroen CJM van den Bergh, Stefano Carattini, Richard B. Howarth, Emilio Padilla, and Jordi Roca, ‘Carbon pricing in climate policy: seven reasons, complementary instruments, and political economy considerations’ (2017) 8(4) Wiley Interdisciplinary Reviews: Climate Change e462. [5] Joseph E Aldy and Robert Stavins, ‘The Promise and Problems of Pricing Carbon: Theory and Experience’ (2012) 21(2) The Journal of Environment & Development 26. [6] Kshama Harpankar, ‘Internal carbon pricing: rationale, promise and limitations’ (2019) 10(2) Carbon Management 219; World Bank, ‘Carbon Pricing Dashboard | Up-to-date overview of carbon pricing initiatives’ < https://carbonpricingdashboard.worldbank.org/map_data > accessed 19 April 2021. [7] Christoph Böhringer, Edward J Balistreri, and Thomas F Rutherford, ‘The role of border carbon adjustment in unilateral climate policy: Overview of an Energy Modeling Forum study (EMF 29)’ (2012) 34 Energy Economics S97. [8] Stefano F Verde, ‘The Impact of the EU Emissions Trading System on Competitiveness and Carbon Leakage: The Econometric Evidence’ (2020) 34(2) Journal of Economic Surveys 320. [9] Justin Caron, ‘Estimating carbon leakage and the efficiency of border adjustments in general equilibrium — Does sectoral aggregation matter?’ (2012) 34 Energy Economics S111. [10] Ludivine Tamiotti, ‘The legal interface between carbon border measures and trade rules’ (2011) 11(5) Climate Policy 1202. [11] Christoph Böhringer, Jared C Carbone, and Thomas F Rutherford, ‘Unilateral climate policy design: Efficiency and equity implications of alternative instruments to reduce carbon leakage’ (2012) 34 Energy Economics S208. [12] Böhringer, Balistreri, and Rutherford (n 7). [13] Joseph E Aldy, ‘Frameworks for Evaluating Policy Approaches to Address the Competitiveness Concerns of Mitigating Greenhouse Gas Emissions’ (2017) 70(2) National Tax Journal 395. [14] WTO, ‘WTO | legal texts - Marrakesh Agreement’ (1947) < https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm#art3 > accessed 26 May 2021. [15] Jason Potts and International Institute for Sustainable Development, The legality of PPMs under the GATT (International Institute for Sustainable   Development 2008). [16] Christine Kaufmann and Rolf H Weber, ‘Carbon-related border tax adjustment: mitigating climate change or restricting international trade?’ (2011) 10(4) World Trade Review 497. [17] Tamiotti (n 10); WTO (n 14). [18] WTO (n 14). [19] Kaufmann and Weber (n 16); Tamiotti (n 10); Aaron Cosbey, Susanne Droege, Carolyn Fischer, and Clayton Munnings, ‘Developing Guidance for Implementing Border Carbon Adjustments: Lessons, Cautions, and Research Needs from the Literature’ (2019) 13(1) Review of Environmental Economics and Policy 3; WTO Working Party, ‘Border Tax Adjustments’ (1970) < https://www.worldtradelaw.net/reports/gattpanels/bordertax.pdf.download > accessed 26 May 2021. [20] Paul Demaret and Raoul Stewardson, ‘Border Tax Adjustments under GATT and EC Law and General Implications for Environmental Taxes’ (1994) 28(4) Journal of World Trade; Kaufmann and Weber (n 16). [21] Joost Pauwelyn, ‘Carbon leakage measures and border tax adjustments under WTO law’ in Geert Van Calster and Denise Prévost (eds), Research Handbook on Environment, Health and the WTO  (Edward Elgar Publishing   2013). [22] Cosbey, Droege, Fischer, and Munnings (n 19). [23] Pauwelyn (n 21). [24] Cosbey, Droege, Fischer, and Munnings (n 19). [25] World Bank, ‘State and Trends of Carbon Pricing 2020’ (2020) accessed 26 May 2021. [26] Aldy (n 13); Camilla Hodgson and David Sheppard, ‘Cost of polluting in EU soars as carbon price hits record €50’ Financial Times  (London, 4 May 2021) < https://www.ft.com/content/2b965427-4fbc-4f2a-a14f-3be6019f0a7c > accessed 21 May 2021; Camilla Hodgson and David Sheppard, ‘UK carbon price trades at £50 as market opens for first time’ Financial Times (London 19 May 2021) < https://www.ft.com/content/56e02d3d-8c31-4937-be50-60d4bf9342f7 > accessed 21 May 2021. [27] Henrik Horn and Petros C Mavroidis, ‘To B(TA) or Not to B(TA)? On the Legality and Desirability of Border Tax Adjustments from a Trade Perspective’ (2011) 34(11) The World Economy 1911. [28] Kaufmann and Weber (n 16). [29] Randolph Bell, Carbon border adjustment: a powerful tool if paired with a just energy transition  (2012)   < https://oecd-development-matters.org/2020/10/27/carbon-border-adjustment-a-powerful-tool-if-paired-with-a-just-energy-transition/ >   accessed 17 May 2021. [30] Aldy (n 13); Matthias Weitzel, Michael Hübler, and Sonja Peterson, ‘Fair, optimal or detrimental? Environmental vs. strategic use of border carbon adjustment’ (2012) 34 Energy Economics S198. [31] Noah Kaufman, John Larsen, Ben King, and Peter Marsters, OUTPUT-BASED REBATES: AN ALTERNATIVE TO BORDER CARBON ADJUSTMENTS FOR PRESERVING US COMPETITIVENESS  (2020) 18. [32] Callum Winstock, ‘Exclusive Interview: Kevin Poloncarz (Part 2) on State & Federal Regulatory Interplay, Cross-Border Carbon Equivalence, and Voluntary Offsets’ ( CaliforniaCarbon.info , 14 April 2021) < https://www.californiacarbon.info/exclusive-interview-kevin-poloncarz-part-2-on-state-federal-regulatory-interplay-cross-border-carbon-equivalence-and-voluntary-offsets/ > accessed 13 May 2021. [33] Kaufman, Larsen, King, and Marsters (n 31); Aldy (n 13). [34] Christoph Böhringer, ‘Alternative designs for tariffs on embodied carbon: A global cost-effectiveness analysis’ (2012) 34 Energy Economics S143. [35] John P Weyant, ‘The costs of the Kyoto Protocol: a multi-model evaluation’ (1999) 26 The Energy Journal 131. [36] Elisa Lanzi, Jean Chateau, and Rob Dellink, ‘Alternative approaches for levelling carbon prices in a world with fragmented carbon markets’ (2012) 34 Energy Economics S240. [37] Christopher D Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98(2) The American Journal of International Law 276. [38] Bell (n 29). [39] Cosbey, Droege, Fischer, and Munnings (n 19). [40] Madanmohan Ghosh, Deming Luo, Muhammad Shahid Siddiqui, and Yunfa Zhu, ‘Border tax adjustments in the climate policy context: CO2 versus broad-based GHG emission targeting’ (2012) 34 Energy Economics S154. [41] Lanzi, Chateau, and Dellink (n 36). [42] Aldy (n 13). [43] David Pearce, ‘The Role of Carbon Taxes in Adjusting to Global Warming’ (1991) 101(407) The Economic Journal 938; David Klenert, Linus Mattauch, Emmanuel Combet, Ottmar Edenhofer, Cameron Hepburn, Ryan Rafaty, and Nicholas Stern, ‘Making carbon pricing work for citizens’ (2018) 8(8) Nature Climate Change 669. [44] James B Bushnell, ‘(Overly) Great Expectations: Carbon Pricing and Revenue Uncertainty in California’ (2017) 70(4) National Tax Journal 837. [45] Aldy (n 13). [46] Susanne Dröge, The EU’s CO2 Border Adjustment: Climate or Fiscal Policy? (2020) < https://www.swp-berlin.org/en/publication/the-eus-co2-border-adjustment-climate-or-fiscal-policy/ > accessed 26 May 2021. [47] Ewa Krukowska, ‘The World’s First Carbon Border Tariff, Explained’ ( Bloomberg , 9 Apr 2021) < https://www.bloomberg.com/news/articles/2021-04-09/how-to-understand-the-eu-s-carbon-import-levy > accessed 25 May 2021. [48] European Parliament, ‘Trade related aspects of a carbon border adjustment mechanism: A legal assessment’ (2020); European Commission, ‘Inception Impact Assessment’ (2020) < https://www.euractiv.com/wp-content/uploads/sites/2/2020/07/CBAM.pdf > accessed 26 May 2021. [49] South African Government, ‘Joint Statement issued at the conclusion of the 30th BASIC Ministerial Meeting on Climate Change hosted by India on 8th April 2021’ (8 April 2021) < https://www.gov.za/nr/speeches/joint-statement-issued-conclusion-30th-basic-ministerial-meeting-climate-change-hosted > accessed 26 May 2021; Sam Morgan, ‘Moscow cries foul over EU’s planned carbon border tax’ ( EURACTIV.com , 27 July 2020) < https://www.euractiv.com/section/economy-jobs/news/moscow-cries-foul-over-eus-planned-carbon-border-tax/ > accessed 26 May 2021. [50] European University Institute, ‘A WAY FORWARD FOR A CARBON BORDER ADJUSTMENT MECHANISM BY THE EU’ (2020) < https://cadmus.eui.eu/bitstream/handle/1814/69155/PB_2020_06_STG.pdf > accessed 17 May 2021; Aldy and Stavins (n 5). [51] Böhringer, Balistreri, and Rutherford (n 7). [52] William D Nordhaus, ‘Climate Clubs: Overcoming Free-riding in International Climate Policy’ (2015) 105(4) The American Economic Review 1339; Nathaniel Keohane, Annie Petsonk, and Alex Hanafi, Toward a club of carbon markets’ (2017) 144(1) Climatic Change 81.