Cryptocurrencies and South Korea

Cryptocurrencies and South Korea

By Max Mittleman

Cryptocurrencies  have become a $700+ billion dollar market. This highly unregulated form of currency has baffled most governments who are accustomed to controlling the  money supplies in their countries. South Korea is one of the biggest markets for cryptocurrencies, but its government is not too keen on the idea. South  Korean decisions on banning cryptocurrency affect the global market of the  digital assets.

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The Polish Holocaust Bill: A Violation of Freedom of Expression?

The Polish Holocaust Bill: A Violation of Freedom of Expression?

By Lauren Kissel

Poland recently passed a new bill that bans accusations that Poles were complicit in the Holocaust. However, Poland has several obligations under international law and the Polish Constitution to protect freedom of expression. Therefore, it is arguable that the holocaust bill is a violation of freedom of expression.

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Is Ivory Coast on the Road to Being a Developed Country?

Is Ivory Coast on the Road to Being a Developed Country?

By Andy Kemmer

After experiencing political upheaval and civil war, Ivory Coast’s economy has been rapidly developing since 2010. It is now West Africa’s second-largest economy and Africa’s fastest growing economy. Among the turmoil and the upheaval cocoa production has remained the biggest driver in Ivory Coast’s economy. As the country continues to develop and cocoa prices drop, the country is finding ways to encourage chocolate production and local chocolate businesses. Given the money in chocolate is greater than that in cocoa, chocolate production could push Ivory Coast over the top to becoming a developed country.

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By Brittany Jones

Sierra Leone is one of more than 70 countries that criminalizes gay sexual activity. The stories of LGBTQ members in Sierra Leone and in other non-Anglo countries as a whole provide comprehensive insight into the cultural values that often promote homophobic legislation throughout the world.

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The Mysterious Case of Preemptive Force in Syria

By: Matthew Thran 

On April 07, 2018 France, Britain and the United States launched a combined missile attack against the Shayrat Airbase in Syria.[1] The stated reason for the missile attack was to “show Western resolve in the face of what the leaders of the three nations called persistent violations of international law.”[2] Specifically, the attack was in response to a suspected chemical attack, perpetrated by the Syrian government, which occurred on April 07, 2018 in the town of Khan Sheikhoun, within Syria.[3] The Organization for the Prohibition of Chemical Weapons was not able to access the sites of the suspected chemical attacks until April 21, 2018, two weeks after the suspected attacks, and the missile strikes.[4]  The Chemical Weapons Convention, which Syria and other nations are a party to, prohibits the use of Chemical Weapons.[5] Despite the OPCW, the implementing party for the Chemical Weapons Convention, not having made a finding on whether a chemical attack occurred France released their own justification for the missile attack.[6] The French report stated, "After examining the videos and images of victims published online, [French intelligence services] were able to conclude with a high degree of confidence that the vast majority [of chemical attacks] are recent and not fabricated."[7] However, Syria has staunchly denied ever using chemical weapons during the civil war.[8] Despite Syria’s protestations to their use of chemical weapons the OPCW and the UN have found that Syria has used chemical weapons on at least four separate occasions during the civil war.[9]


It is necessary to determine whether there was a legally cognizable excuse for the United States, France, and Britain to launch a premeditated attack against another sovereign nation. As members of the United Nations France, Britain, and the United States are all bound by the provisions of the United Nations Charter.[10] Article two of the United Nations Charter states that all members must settle their disputes in a peaceful manner so that the international peace and security are not endangered.[11] Additionally, article two states, “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[12]

Despite the prohibitions on the use of force, article 51 of the UN Charter provides for the use of force in self defense.[13] Article 51 states:


Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.[14]

Article 51 requires that an armed attack occur before a nation can use force in self defense.[15] There was no attack on France, Britain, or the United States prior to their missile attack on Syria.


In addition to article 51 the United Nations Security Council has the authority to authorize the use of force against a nation. Article 39 of the United Nations Charter allows the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”[16] Article 42 provides that the Security Council may authorize the use of land, air, and sea forces as necessary to restore peace and security to the international community.[17] The Security Council did not authorize the use of force prior to the missile attack conducted by France, Britain, and the United States.


After the missile attack against Syria, there was an emergency session held for the UN Security Council. At the session, Russia attempted to pass a resolution condemning France, Britain, and The United States for violating international law and the UN Charter. Russia could not get the requisite amount of votes to pass the resolution, but that is not indicative of the legality of the acts taken by the United States, France, and Britain.[18]

The International Court of Justice has dealt with the issue of preemptive use of force in numerous cases. In Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 212 (June 27) [hereinafter Nicaragua], the ICJ held that an armed attack only includes, “the most grave forms of the use of force”. Additionally, in G.A. Res. 2623 (VII) (Oct. 24, 1970), the United Nations stated that less grave uses of force that do not constitute armed attacks may involve deprivation of peoples’ self-determination, organizing or encouraging mercenaries to enter another State, and assisting or organizing terrorist attacks in another state. Under definitions put forward by both the International Court of Justice and the United Nations the United States, France, and Britain were not justified in using force against Syria.


Despite the attack likely having no basis in international law, there is some precedent for taking military action without United Nations authorization. In 1999 NATO began a bombing campaign against Serbia.[19] There was no United Nations resolution authorizing the bombing campaign in Kosovo but there was widespread support from the international community and the attacks were carried out by NATO rather than by independent nations.[20] There was no legal justification for the Kosovo attacks but because the international community largely supported the action there were never any consequences for the action. In the present case, Russia and China are both vehemently against intervention in Syria and the illegal attacks are likely to cause international strife.


[1] Helene Cooper, Thomas Gibbons-Neff & Ben Hubbard, U.S. Britain and France Strike Syria Over Suspected Chemical Weapon Attack, The New York Times (April 13, 2018),

[2] Id.

[3] Syria Chemical Attack: Experts Finally Visit Douma Site, BBC (April 21, 2018),

[4] Id.

[5] Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction, Jan. 13, 1993;

[6]  Id., Ledyard King & Oren Dorell, French Report Lays out the Evidence: Assad Forces Conducted Chemical Attacks on Civilians, USA Today (Apr. 14, 2018),

[7] King & Dorell, supra note 6.

[8] Syria Chemical Attack: Experts Finally Visit Douma Site, supra note 3.

[9] Id.

[10] U.N. Charter art. 2.

[11] Id. ¶ 3.

[12] Id. ¶ 4.

[13] Id. art. 51.

[14] Id.

[15] Id.

[16] Id. art. 39.

[17] Id. art. 42.

[18] Ray Sanchez & Laura Smith-Spark, After Syrian Airstrikes Comes Finger-Pointing and Condemnations, CNN (Apr. 14, 2018),

[19] James Rubin, Syria is not Kosovo, The New York Times (Sept. 04, 2018),

[20] Id.

Refugee and Asylum-Seekers in Malaysia: The Consequences of Invisibility

By Inessa Wurscher

In the last several decades, Malaysia has been a significant destination for large populations of both migrant workers and refugees.[1] As of the beginning of 2018, there were approximately 153,480 refugees and asylum-seekers[2] in Malaysia in addition to between four and five million migrant workers and 12,350 stateless people registered with the United Nations High Commissioner for Refugees (UNHCR).[3] However, it is believed that there are “tens of thousands more . . . [that are] still unrecogni[z]ed.”[4] Despite this sizable migration into the country, Malaysia does not have any national refugee laws or related policy frameworks, instead “any illegal entry or stay in the country is deemed punishable by law.”[5] “Malaysia [also] makes no distinction between undocumented workers and refugees,”[6] even those who have legal refugee status through the UNHCR.[7] Consequently, “[m]ost refugees are de-facto integrated into the urban fabric of the Malaysian community as part of a larger, unregulated migrant economy.”[8] While Malaysia has begun to take steps to improve the treatment of refugees and asylum-seekers, more attention still needs to be given to solidifying their legal status.


Refugees, as well as many migrant workers, have no legal status in Malaysia, which leaves them vulnerable to several problems, including “arrest, detention, prosecution, imprisonment and other criminal sanction[s] (including caning) and deportation if not identified, registered and granted protection by UNHCR.”[9] However, even those registered by the UNHCR are not consistently guaranteed protection in practice.[10] In Malaysia, it is illegal for refugees to work, often forcing them into sweatshops and other unlawful forms of employment where there are no protections against mistreatment.[11] They are also barred from access to healthcare.[12] Additionally, these refugees also “have no legal access to public schools and cannot afford private schools, so they can only go to NGO-sponsored schools that often do not have proper resources or space.”[13] However, there are not enough NGO-sponsored schools,[14] forcing many of the children into factories and other forms of menial labor.[15]


In addition to these issues with daily life, refugees and migrant workers in Malaysia are also subject to immigration raids which often lead to detention and, in some cases, deportation.[16] In Malaysia, immigration matters are governed by the Immigration Act, under which it is a “strict liability offence for persons [to be] in the country without authorization, which could include registered refugees.”[17] The fear of arrest for being an illegal entrant, regardless of registration with the UNHCR, is widespread and affects all ages.[18] Even children are frequently arrested on their way to and from school.[19] Once detained, many of these children are “separated from their families and detained with unrelated adults.”[20]


According to Malaysian law, “foreigners suspected of entering the country illegally . . . [can] be detained for ‘such period as may be necessary.’”[21] Many of those detained were allowed in the country legally as refugees and often spend the majority of their incarceration “petitioning the guards to notify UNHCR of their whereabouts,”[22] which is “the only way to get their refugee status verified and avoid deportation.”[23] Once detained, Malaysian law does not provide for either periodic review or judicial review of the decision to detain a migrant unless the alleged violation is related to a procedural issue.[24] On average, this detention lasts around 16 months; however, it has been known to last over five years in some cases.[25]


The conditions of these detention centers are also notorious for being overcrowded and unsanitary, leading to disease.[26] Many migrants detained in these centers also do not have access to nutritious food and medical services.[27] The Malaysian Public Works Department has held several blocks in detention centers to be “’unfit and unsafe for occupation.’”[28] Furthermore, the Malaysian Human Rights Commission (SUHAKAM) has gone as far as to describe the conditions in these detentions centers as ‘inhumane.’[29] The consequences of these poor conditions became clear when it was discovered that between 2014 and 2016, 161 people, many of them foreigners, died of disease in these detention centers.[30]


Unfortunately, “Malaysia is not a signatory to the 1951 UN refugee convention and is not bound by international laws to provide refuge, asylum, jobs and education to refugees.”[31] However, Malaysia is a signatory of the UN Convention on the Rights of the Child (CRC), which does bind them to provide protection for children.[32] As a result, many of the recent projects to improve the treatment of refugees in Malaysia have focused on children, specifically in the context of detention.[33] For example, in 2015 a national action plan was created by Malaysia and UNHCR to improve detention conditions as part of the UNHCR’s Global Strategy-Beyond Detention Program.[34] The plan focused on three goals: “[e]nd the detention of children;”[35] “[e]nsure that alternatives to detention are available in law and implemented in practice;”[36] and “[e]nsure that conditions of detention, where detention in necessary and unavoidable, meet international standards.” While this plan reaches beyond the treatment of children, children’s rights are its initial basis and is the only area in which changes have successfully been implemented.[37] These changes include greater legal and procedural protections for children, especially for unaccompanied minors, as well as the development of more alternatives to detention.[38]


However, this action plan has also served as a starting point from which other agreements have been created, such as the Memorandum of Understanding between the UNHCR and SUHAKAM that was signed in August of 2017.[39]  The purpose of the agreement was to “strengthen[] and formali[ze] their long-standing cooperation on human rights issues for asylum-seekers, refugees, and stateless persons.”[40] As a result of this memorandum, Malaysia has also begun to implement several educational programs for immigration officials, such as those who work in “law enforcement and prosecution for immigration offences, policy and strategy, and management of the Immigration Detention Centre.”[41] These programs focus on providing these officials with greater exposure to human rights issues and international standards for refugee protection.[42] However, while these changes have led to positive results for refugees of all ages, problems with detention still remain and the changes have had little effect on the overall legal status of refugees and asylum-seekers in Malaysia.[43]


There are many potential solutions that have been suggested by various organizations and individuals to deal with these outstanding issues. The UNHCR has continued to push for a greater administrative review of immigration decisions while other organizations have tried to implement greater oversight of the detention facilities and of the refugee process.[44] Some people have argued that the focus should be on “improving . . . access to employment, healthcare and education” for refugees and migrants, potentially by expanding the UNHCR’s registration system that is already in place.[45] Others argue that the “’Malaysian authorities could begin . . . by ending arbitrary and indefinite detention of migrants, including refugees and survivors of trafficking.’”[46] One organization, the Malaysian Bar Council, even went as far as creating a detailed “legal and administrative framework for dealing with asylum-seekers and refugees,” known as the proposal on “Developing a Comprehensive Policy Framework for Refugees and Asylum Seekers.”[47] However, the fact remains that few of these proposals have gone as far as to suggest that refugees receive an official legal status.


While Malaysia has begun to take steps to improve the treatment of refugees and asylum-seekers, more attention still needs to be given to solidifying their legal status. As discussed above, many of the problems suffered by the refugee and migrant population in Malaysia stem from their lack of status.[48] It is this lack of status that prevents them from working and from access to education and healthcare, and ultimately leads them to being arrested and indefinitely detained.[49] Although addressing the terrible conditions at detention centers, providing access to social services, and creating frameworks for administrative and judicial review of immigration decisions will certainly improve the process, the problems faced by refugees in Malaysia are likely to continue as long as they have no legal status.  


[1] Laignee Barron, Refugees Describe Death and Despair in Malaysian Detention Centers, The Guardian, May 15, 2017,

[2] Figures at a Glance in Malaysia, UNHCR: The UN Refugee Agency,

[3]Malaysia, UNHCR: The UN Refugee Agency,

[4] Barron, supra note 1.

[5] Malaysia, supra note 3.

[6] Kate Mayberry, First-Class Refugees: Malaysia’s Two-Tier System, Al Jazeera, Dec. 27, 2015,

[7] Kok Xing Hui, Rohingya Refugees Find Solace in Malaysia, CNN, Feb. 25, 2018,

[8] Mayberry, supra note 6.

[9] UNHCR Malaysia, National Action Plan: Malaysia, Nov. 2015,

[10] Id.

[11] Melissa Goh, Rohingya Refugees Work at Unlicensed Bird's Nest Factory in Malaysia to Make a Living, Channel NewsAsia, Jan. 11, 2018,

[12] Id.

[13] Jueun Choi & Ifath Sayed, Refugees in Malaysia: Haunted by Memories, Pulitzer Center, Feb. 8, 2018,

[14] Id.

[15] Goh, supra note 11.

[16] UNHCR Malaysia, supra note 9.

[17] Id.

[18] Ifath Sayed & Jueun Choi, Inside Malaysia’s ‘Living Hell’ for Refugee Children, Refugees Deeply, Feb. 5, 2018,

[19] Id.

[20] UNHCR Malaysia, supra note 9.

[21] Barron, supra note 1.

[22] Id.

[23] Id.

[24] UNHCR Malaysia, supra note 9.

[25] Barron, supra note 1.  

[26] Id.

[27] UNHCR Malaysia, supra note 9.

[28] A. Ananthalakshmi, Malaysia Rights Panel Disturbed Over More Than 600 Deaths in Prisons and Detention Centers, Reuters, Apr. 4, 2017,

[29] Id.

[30] Barron, supra note 1. 

[31] Goh, supra note 11.

[32] Status of Treaties: Convention on the Rights of the Child, United Nations Treaty Collection,

[33] UNHCR Malaysia, supra note 9.

[34] Id.

[35] Id.

[36] Id.

[37] UNHCR Malaysia, Malaysia: Progress Under the Global Strategy Beyond Detention 2014-2019, Mid-2016, Aug. 2016, (hereinafter Malaysia: Progress Under the Global Strategy Beyond Detention).

[38] Id.

[39] UNHCR Malaysia, SUHAKAM-UNHCR Human Rights Workshop for Malaysian Immigration Officials, UNHCR: The UN Refugee Agency, Mar. 1, 2018, (hereinafter SUHAKAM-UNHCR Human Rights Workshop for Malaysian Immigration Officials).

[40] Id.

[41] Id.

[42] Id.

[43] Malaysia: Progress Under the Global Strategy Beyond Detention, supra note 37.

[44] UNHCR Malaysia, supra note 9.

[45] Hui, supra note 7.

[46] Ananthalakshmi, supra note 28.

[47] UNHCR Malaysia, supra note 9.

[48] Goh, supra note 11.

[49] Id.

Germany’s Free Speech in the Online Era

By: Sophie Goodman 

Freedom of speech is a delicate balance, as “one man’s protest is another’s hate speech.”[1] In May 2017, a German court held that calling a public figure on a public TV show a “Nazi slut” was covered by freedom of expression.[2] However, German courts may no longer have such power on social media sites.[3]


The Netzwerkdurchsetzungsgesetz (NetzDG) was passed in June 2017 and social media sites, against whom this new law can be enforced, were given until January 2018 to prepare to enforce this law.[4] NetzDG, which “aims to combat hate speech and fake news,”[5] arose in response to an eruption of hate speech on Facebook in 2015 during the migrant crisis.[6] This hate speech led to physical assaults “and arson against migrant shelters.”[7] NetzDG attempts “to transfer existing anti-hate legislation online.”[8] However, balancing the liberties of free speech and preventing hate speech is hard enough in real life, but may be impossible online.[9]


NetzDG applies “to telemedia service providers … which are designed to enable users to share any content with other users or to make such content available to the public.”[10] However, this law only applies to social media sites that have more than two million German members.[11] Effectively, this law applies to Snapchat, Instagram, Twitter, Facebook, and YouTube.[12]

Social media networks are now required, by law, to police and delete any posts that are obviously illegal hate speech.[13] If the social media sites do not remove these posts within 24 hours, they face fines of up to €50 million.[14] However, if a post is more complex, the site will have seven days to act.[15] Before the enactment of this law, “only a minority of illegal posts on social media were being removed within a day.”[16]


NetzDG does not define “obviously illegal” speech, but instead refers to the German Criminal Code.[17] These sections referred to include “‘public incitement to crime,’ ‘violation of intimate privacy by taking photographs,’ defamation, ‘treasonous forgery,’ forming criminal or terrorist organizations, and ‘dissemination of depictions of violence.’”[18] Moreover, social media sites now must have an efficient structure to deal with these complaints.[19] If a social media network receives more than 100 complaints, they must publish a report, in German, about the structure in place, how they handled the complains, and the number of complaints received.[20] With all of these requirements in place, NetzDG “is the most extreme example of efforts by governments and regulators to rein in social media firms.”[21]


NetzDG is an attempt to “balance people’s legitimate right to free speech with others’ desire to be protected against harmful material.”[22] However, many critics believe that this law has not been effective in reaching this goal.[23] Many experts conclude that NetzDG violates Germany’s constitution,[24] which states that “[e]very person shall have the right to freely express and disseminate his opinions in speech …[and that] [t]here shall be no censorship.”[25] Moreover, due to Germany’s extensive defamation and hate speech laws, NetzDG now encompasses a wide breadth of online posts.[26] Because of the expansive rules, this could “result in a wider chilling effect on online expression.”[27]


Since the enforcement of NetzDG, many social media accounts and posts have been deleted or suspended.[28] Moreover, U.S. companies, such as Facebook have hired a large staff in Germany in order to deal with the implications of the new law.[29] Within just days of NetzDG coming into effect, there were a number of controversial deletions and suspensions.[30] This led to the inevitable conclusion that “legitimate expressions of opinion are being deleted. The law is achieving the opposite of what it intended: it is actually hampering the fight against crime.”[31]


Many critics have pointed out that this now leaves the determination of what is hate speech, according to Germany’s constitution, in the hands of U.S. companies.[32] According to NetzDG, the social media networks must decide what is and is not hate speech, which leaves “U.S. companies such as Twitter … able to influence freedom of opinion … in Germany.”[33] U.S. companies are now effectively being given the role of judge as to freedom of expression in Germany.[34]


Moreover, NetzDG has many legal implications. Private citizens and private companies are now in the role of judge and jury, as “[j]udicial review of speech will only occur if the government seeks to bring an action arguing that content was unlawful.”[35] Thus, NetzDG has essentially privatized enforcing the law.[36] Another major legal implication is that once a post is deleted, that evidence cannot be used in court for forensic purposes “unless [that] evidence has been secured in a way that will stand up in court.”[37] Moreover, NetzDG also imposes heavy fines for repeatedly not deleting obviously illegal content.[38] However, if the social media company does not have a physical office in Germany, these fines may be hard, if not impossible, to impose across international borders.[39] Aside from the obvious legal implications, simply “deleting content is not enough. The only way evil can be rooted out is for perpetrators to realize that their actions on the Web have consequences.”[40]


[1] Germany is Silencing “Hate Speech,” but Cannot Define it, The Economist (Jan. 13, 2018),

[2] Saim Saeed, German AfD Leader Loses Case Against TV Show That Called Her ‘Nazi Slut’, Politico (May 17, 2017, 8:24 AM),

[3] See Overview of the NetzDG Network Enforcement Law, CDT (July 17, 2017),

[4] Germany Starts Enforcing Hate Speech Law, BBC (Jan. 1, 2018),

[5] Jenny Gesley, Germany: Social Media Platforms to be Held Accountable for Hosted Content Under “Facebook Act”, Library of Congress (July 11, 2017),

[6] Geoffrey Smith, Germany’s New Law is a Milestone for Social Media Regulation in Europe, Fortune (June 30, 2017),

[7] Id.

[8] Scott Roxborough, Why an Ambitious New Online Anti-Hate Speech Law is Backfiring in Germany, Hollywood Reporter (Jan. 15, 2018 6:45 AM),

[9] Id.

[10] Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken,  Netzwerksdurchsetzungsgesetz [NetzDG] [Network Enforcement Act], June 6, 2017, Deutschen Bundestages at art. 1, § 1, ¶ 1 (Ger.) [hereinafter NetzDG].

[11] Germany Starts Enforcing Hate Speech Law, supra note 4.

[12] Roxborough, supra note 8.

[13] Philip Oltermann, Tough New German Law Puts Tech Firms and Free Speech in Spotlight, Guardian (Jan. 5, 2018),

[14] Id.

[15] Germany Starts Enforcing Hate Speech Law, supra note 4.

[16] Germany is Silencing “Hate Speech,” but Cannot Define it, supra note 1.

[17] NetzDG, supra note 10, at art. 1, § 1, ¶ 3.

[18] Overview of the NetzDG Network Enforcement Law, supra note 3.

[19] Germany Starts Enforcing Hate Speech Law, supra note 4.

[20] Overview of the NetzDG Network Enforcement Law, supra note 3.

[21] Germany Starts Enforcing Hate Speech Law, supra note 4.

[22] Mark Scott & Janosch Delcker, Free Speech vs. Censorship in Germany, Politico (Jan. 4, 2018 9:13 PM),

[23] See id.; see also Germany Starts Enforcing Hate Speech Law, supra note 4.

[24] Bernhard Rohleder, Germany Set Out to Delete Hate Speech Online. Instead, It Made Things Worse, Washington Post (Feb. 20, 2018),

[25] Grundgesetz [GG] [Basic Law], at art. 5(1), translation at (Ger.).

[26] See Diana Lee, Germany’s NetzDG and the Threat to Online Free Speech, Media Freedom & Information Access Clinic (Oct. 10, 2017),

[27] Natasha Lomas, Germany’s Social Media Hate Speech Law is Now in Effect, Tech Crunch (Oct. 2, 2017),

[28] Scott & Delcker, supra note 22.

[29] Germany Starts Enforcing Hate Speech Law, supra note 4.

[30] Oltermann, supra note 13.

[31] Rohleder, supra note 24.

[32] See id.; see also Michelle Martin & Holger Hansen, German Opposition Calls for Abolition of Online Hate Speech Law, Reuters (Jan. 7, 2018 12:03 PM),

[33] Martin & Hansen, supra note 32.

[34] See id.

[35] See Overview of the NetzDG Network Enforcement Law, supra note 3.

[36] Rohleder, supra note 24.

[37] Id.

[38] See NetzDG, supra note 10, at art. 1, § 4.

[39] Lomas, supra note 27.

[40] Rohleder, supra note 24.

Running Away from Formalism One Unsent Text at a Time

By Kellina Heylek

In 2017, the average American adult spent almost three hours a day on his or her mobile device.[1] Not only are individuals using mobile devices more often, but they are becoming more dependent on them as time goes on. Users can access their phones at any time and have endless amounts of information at their fingertips; even information regarding how their property will be handled long after their death. Whether it be a legal service provider or law firm apps, various outlets on mobile devices allow the viewer to gain information about the process of drafting a will or leaving property within a trust. However, the laws in many jurisdictions across the world still call for the traditional formalistic process of drafting wills. Technological advancement and access to information virtually in any place with an internet connection is not the only influence on informal will drafting. Tragedy and crisis, such as suicide or a plane crash, combined with the ability to draft a digital document at any time, has forced courts around the world to reconsider the formalistic requirements of drafting a will.


Australian Courts have been breaking ground in accepting informal wills that are found on various digital platforms after crisis and unexpected tragedy.[2] In the past ten years, the Australian Courts have allowed various wills to enter probate that have been found as draft Word documents on laptop computers and draft writings on the Notes app on the decedent’s iPhones.[3] In fact, the New South Wales Supreme Court found a valid written will was displaced by a video will the decedent made two weeks after the traditional will.[4] However, in each case where an informal digital will was accepted into the probate court, the decedent’s had displayed clear testamentary intent.[5] The clear testamentary intent was found based on a combination of facts, including metadata pertaining to each documents’ creation, editing, and accessibility, the writing was titled either “Will” or “My Will[,]” and, in some cases, the decedent told others about the location and nature of the digital document.[6]


Recently, the Australian Courts were brought back into the limelight when the Supreme Court of Queensland ruled an unsent text message would be considered a valid will and admitted it to probate.[7]  Before tragically taking his own life, the decedent drafted a text message giving his remaining possessions to his brother and nephew.[8] The draft text message addressed to his brother read


Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten . A bit of cash behind TV and a bit in the bank Cash card pin 3636






 My will[9]


The Court further described the unsent text message as having a paperclip and smiley emoji between the words “My will.”[10] The forensic evidence showed the message was created sometime before the decedent’s death, there were no other writings on his phone evidencing testamentary intent, and the assets described in the text were identifiable.[11] Also, the Court was presented with statements by the beneficiary and friends who had conversations with the decedent about his wife and child receiving none of the decedent’s property if something were to happen to him.[12] The decedent did not have a will, and if the unsent text message was rejected by the Court as his valid will, then his wife and child would receive his property.[13] Based on the forensic evidence, additional statements, and the absence of a relationship between his wife and son, the Court determined the text message was a proper document describing the decedent’s testamentary intent which he intended to operate as his will.[14]


The controversy surrounding the ruling stems from individual’s who would like to keep the formalistic aspects of will formation.[15] Generally, a valid will is in writing, attested by at least two witnesses, and signed by the donor.[16] However, in 2006, the Queensland government decided to amends its formalistic regulations to accept less formal types of documentation provided supplemental evidence of the decedent’s intent.[17] Similar to the flexibility offered by the Queensland government, eighteen states in the United States have adopted the Uniform Probate Code that allows for unconventional wills so long as basic requirements are met.[18] Some of the basic requirements include the testamentary intent of the donor and testimony from witnesses.[19] Formalistic supporters want to keep away from the unconventional formation of wills in order to keep the sanctity of the process and allow for the individual to truly understand that once the will is drafted and executed, the donor does not have the ability to change it.[20]


Although informal wills are more accepted in some jurisdiction, the focus is still on the donors intent.[21] An unsent text message could still not give rise to the necessary donative intent that the courts have in mind. However, the combination key facts—witness testimony, conversations the decedent had with close friends, the metadata found by experts, and the absent of a will already put in place—could sway the courts to follow a more informal document. As stated above, the 2006 legislation and ruling regarding informal digital wills in Australia has led their culture to be more focused on the evidence and intentions of the donor over the formalities of creating a will.[22] Furthermore, emerging access to technology coupled with the turn away from formalism is likely to result in more cases like the unsent text message.


[1] How Much Time Do People Spend on Their Mobile Phones in 2017?, Hackernoon (last visited Mar. 12, 2017),

[2] Rachel Olding, Being of Sound Mind and Pixels: Wills in the Ditigal Age, The Sydney Morning Herald (last visted Mar. 12, 2018),

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Nichol v Nichol & Anor (2017) QSC 200 (Austl.),

[8] Id. ¶ 3.

[9] Id. ¶ 13.

[10] Id. ¶ 14.

[11] Id. ¶¶ 23-25.

[12] Id. ¶¶ 29-30.

[13] Id.

[14] Id. ¶¶ 41-48, 59.

[15] Juliet Brook, I Bequeath U . . . When a Text Message Can Count as Your Will, The Conversation (lasted visited Mar. 12, 2018),

[16] Saqib Shah, Unsent Text Message Accepted as Valid Will by Australian Court, Engadget (last visited Mar. 12, 2018),; see also Unsent Text Accepted as Dead Man’s Will by Australian Court, BBC News (last visited Mar. 12, 2018),

[17] Id.

[18] Gail Buckner, Texting Your Will . . . Will it be Upheld?, Fox Business (last visited Mar. 12, 2018),

[19] Id.

[20] Id.

[21] Supra note 15, 17.

[22] Supra note 7, 15.

The Bid for Recognition: The Enduring Cost of Being Unrecognized

By: Megan Hall 

Kosovo is a tiny, landlocked country in the Balkan region of Europe, tucked between Serbia, Montenegro, Albania, and Macedonia. The Kosovo Assembly declared independence on February 17, 2008, and over 110 countries have recognized Kosovo as a country.[1] The International Court of Justice ruled this declaration to be legal in June 2010, leaving Serbia few avenues to dispute Kosovo’s independence.[2] However, it still seeks full international recognition and is still not a member of the United Nations or European Union.[3]

Kosovo is a small region, slightly larger than Delaware.[4] It is the second poorest country in Europe with a GDP of $10,400 in 2017.[5] The modern boundaries were established after World War II when Kosovo was an autonomous province of Serbia in Yugoslavia.[6] During its history since the Ottoman Empire, Kosovo has seen a lot of ethnic conflict. In the 7th century, ethnic Serbs moved into Kosovo, which then became the center of the Serbian Empire.[7] During the Ottoman Empire, a large number of Turks and Albanians moved into the region, and Albanians became the dominant ethnicity at the end of the 19th century.[8] Albanian nationalism increased during the 1980s, calling for Kosovo independence. In 1991, Albanian leaders called for Kosovo independence, which led to Serbian leaders taking repressive measures against Albanians during the 1990s.[9]

In 1998, Serbia launched a brutal campaign against the Albanians in Kosovo.[10] An estimated 300,000 Albanians were expelled from their homes by October 1998 by the Serbian Army.[11] A ceasefire between the Serbian Army and the Kosovo Liberation Army (KLA) occurred in October 1998.[12] Fighting renewed in the new year, and NATO forces became involved in March 1999.[13] After 78 days of airstrikes, the Serbian leader capitulated and withdrew, leaving a NATO Peacekeeping force in place.[14] Finally, in April 2013, Serbia and Kosovo signed the Brussels Agreement, the first agreement since the conflict to provide for a way to normalize relations between the two countries.[15] Still, Serbia refuses to recognize the country, and China and Russia back Serbian claims to the region.[16]

NATO has continued to have a presence in Kosovo with 355 personnel deployed as of March 2018.[17] The United Nations Security Council authorized the establishment of a civil presence in Kosovo in Resolution 1244 on June 10, 1999.[18] The international community recognized the ongoing human rights crisis in Kosovo and responded. However, much of Kosovo’s current malaise can be traced back to this crisis, as it was never properly resolved.

By the end of the conflict in June 1999, an estimated 4,400 people were missing.[19] The International Commission on Missing Persons has used DNA matching to identify those missing but around 1,700 people remain unidentified.[20] In Kosovo today, the youth unemployment hovers around 60% and the average age is 26.[21] The population of Kosovo is young and poor and stuck in a mire assisted by the lack of international recognition.

A country being recognized by other countries around the world means the country can actively take part in international law. Because it is not recognized by # countries, Kosovo is not a member of the European Union. Without membership, Kosovo citizens cannot freely move throughout the European Union. Thus, the borders are closed, and Kosovo youth are trapped in an economy with few opportunities. Other issues also persisted, like a lack of a postal system or SWIFT codes.[22] Kosovo lacked a postal service and relied upon Albania’s, which created issues with sending or receiving goods.[23] Similarly, Kosovo banks did not have SWIFT codes, making transferring money more difficult.[24] In 2017, Brookings estimated that the cost of the lack of recognition was the equivalent of a 14% tariff when trading with Kosovo, which is enormous.[25]

Serbia is also not a member of the European Union but has been told that it could join in 2025 provided it resolves its conflict with Kosovo and carries out some reforms at home.[26] Similar to Kosovo, Serbia is a small country, slightly smaller than North Carolina.[27] However, the Serbian economy has not suffered to the same degree as the Kosovo economy. Its GDP per capita was $15,200 in 2017, and its unemployment rate is around 16%.[28] Although this is relatively high, it is significantly lower than its neighbor’s rates.[29] Still, it too seeks full international recognition.

The resolution of the Serbian-Kosovo conflict and the official recognition of an independent Kosovo by the full international community would help move this region out of the mire it has wallowed in since the 1990s. Continuing non-recognition poses a large economic cost. Kosovo has a large youth population and not giving them the freedom to move within the European Union and find opportunities to work hinders the European Union as well as Kosovo. Recognition would likely boost trade, increasing opportunities for the entire region. Finally, official recognition might be enough to finally push to heal the wounds still festering from the ethnic conflict. The 1,700 people should be identified and the people who suffered through the War should be able to finally feel a sense of peace and hope in the region.



[1] Kosovo, Central Intelligence Agency, (last accessed Apr. 23, 2018).  

[2] Peter Beaumont, Kosovo’s Independence is Legal, UN Court Rules, The Guardian, Jul. 22, 2010,

[3] Kosovo, Central Intelligence Agency, (last accessed Apr. 23, 2018).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Niel Tweedie, Kosovo War: Thousands Killed as Serb Forces Tried to Keep Control of Province, The Telegraph, Mar. 31, 2009,

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Piotr Smolar, Serbia and Kosovo Sign Historic Agreement, The Guardian, Apr. 30, 2013,

[16] The Associated Press, Kosovo Marks Progress, if not Universal Recognition, on 10th Anniversary, CNBC News,

[17] United Nations Peacekeeping, “UNMIK Fact Sheet”, (last accessed Apr. 23, 2017).  

[18] S.C. Res. 1244 (June 10, 1999).  

[19] Kosovo, International Commission on Missing Persons, (last accessed Apr. 23, 2017).

[20] Id.

[21] Kosovo, Central Intelligence Agency, (last accessed Apr. 23, 2018).  

[22] Jieun Choi, The Costs of Not Being Recognized as a Country: The Case of Kosovo, Brookings, Nov. 16, 2017,

[23] Id.  

[24] Id.  

[25] Id.  

[26] Ivana Sekularac, Serbs Won’t Back Kosovo Recognition for EU Seat, President Warns, Reuters, Feb. 16, 2018,

[27] Kosovo, Central Intelligence Agency, (last accessed Apr. 23, 2018).

[28] Id.

[29] Id.

India’s Maternity Benefit (Amendment) Act: Anticipating Clarification of the Crèche Clause

Sarah Faris 

Roughly a decade after the adoption of India’s Constitution in 1950, the nation implemented several pieces of legislature specifically geared towards promoting women’s participation in the workplace.[1] One such piece of legislation, entitled the Maternity Benefits Act of 1961, was revisited and amended just last year in March 2017.[2]   This amendment reflects an expansion of the rights of pregnant, working mothers and families with young children in general. 

The original 1961 version of the Maternity Benefits Act implemented paid leave for mothers.[3] Specifically, it provided mothers with twelve, fully paid weeks of leave, which could either all be used post-delivery or split up between pre and post delivery usage.[4]  The Act protected women from being fired while on maternity leave.[5] Even upon the expiration of leave, the Act included provisions favoring nursing mothers.  Until a child had reached the age of fifteen months, it was required that the mother be permitted two nursing breaks during the workday, in addition to the normally allotted breaks.[6]

The Maternity Benefit (Amendment) Act of 2017 builds upon these provisions.  The Act further extends the amount of paid leave time available to mothers, providing twenty-six weeks of paid maternity leave for new mothers.[7]  A mother of two or more, however, will still adhere to the twelve-week leave system that had previously been in place.  The same split-time opportunity from the 1961 version, allotting six weeks before and after birth, is still available to second time mothers.[8] First time mothers may use up to eight weeks of leave before birth, and eighteen weeks once the baby has arrived.[9] In addition to these accommodations for prepartum and postpartum mothers, provisions are set in place for mothers who have legally adopted babies as well.[10] If the child is younger than three months old when adopted, the new mother is allowed twelve weeks leave, starting at the time that the child is placed in their care.[11] 

Interestingly, rather than merely expanding the time frame of maternity leave, notable amendments also address childcare after leave has terminated.  For example, there is a new provision specifically allowing the mother and employer to negotiate additional terms of leave in situations where work can be completed from home.[12]  Perhaps most notable, however, is the new crèche facility requirement. 

Although the laws became effective as of July 1, 2017, logistical detailed requirements for the crèche facilities have yet to be released, but are expected November 2018.[13]  Until that time, however, existing crèche facility laws set in place by the Factories Act of 1948 are to be followed.[14] These include basic requirements, such as maintaining adequate ventilation and sanitation at the facility and ensuring that children receive care from trained childcare professionals.[15] Additionally, while the Factories Act recognizes crèche facilities as accommodating children up to the age of six, it is important to clarify whether or not this approach will be maintained.[16] 

There are, however, some major differences between the Factories Act provisions, and those provided for in the Maternity Benefit (Amendment) Act, which indicate some notable changes.  In an opinion piece by Gerald Manoharan and Sonakshi Das, these attorneys speak to the importance of providing uniform, streamlined guidelines for these facilities.[17]  They point out that the Factories Act of 1948 provided significant discretion to the States to determine the specifics for implementing facilities, within their localities and industries.[18] Specifically, the Act includes an entire subsection providing that the State Government may make specific rules concerning issues such as the location of facilities, standards for the rooms, provisions of refreshments, and feeding times.[19]   However, such state discretion is noticeably missing from the Amendment, and may prove to be difficult to implement until a uniform approach is spelled out.[20]

Accordingly, there are additional components to the amendment that should hopefully receive clarification in the upcoming months.  For one, the language of the amendment states that the location of the crèche facility must be within “such distance as prescribed,” for “every establishment having fifty or more employees.”[21]  This location requirement appears to be ambiguous as it is currently adopted.  

According to a June publication of The Tribune India, a senior official was quoted as having stated, “As of now, companies can take a leeway as we have not defined within what distance a crèche should be opened by an employer.  We are yet to bring that into the rules and then have to notify that in a couple months[.]”[22]  While this leeway perhaps allows employers some freedom in determining the best manner of implementing crèche facilities based on their specific situations, it seems that it will be important for them to be away of what types of restrictions may or may not be adopted before any serious planning is underway.  For example, if a company must purchase additional space nearby their facility to accommodate the needs of their employees, it would be vital to know the distance that is required prior to making such a purchase. 

Another key aspect of the language, as mentioned above, identifies that crèche facilities are to be maintained near any establishment that has fifty or more employees.  The use of the term “employees,” without the caveat of “female” or “mother,” suggest that the crèche facility would be a requirement whether mother or father are employed.[23]  This increases the scope of the law, recognizing the need for childcare as one that is not gender-defined, and the role of both parents as caretakers.  This is certainly a contrast from the language used in the Factories Act of 1948, where the crèche is to be provided only in factories where thirty women are regularly employed.[24]

This new legislation is an incredible step, then, in addressing the needs of childcare for working families.  However, it appears that there is some concern as to the manner in which the crèche facilities will be implemented.  Whereas previously there was local discretion provided as to the specific logistics of the facilities, this new amendment appears to be an attempt at a more universal method.  With that in mind, then, the language of the upcoming specifications will be important for determining how well this can truly be implemented. 



[1] Ujvala Rajadhyaksha & Swati Smita, Tracing a Timeline for Work and Family Research in India, Economic and Political Weekly, 1674-80, 1675, (Apr. 24, 2004). 

[2] Raavi Birbal, Creche Clause in Maternity Act Depends on Execution, New Indian Express (May 27, 2017),

[3] Supra Rajadhyaskha, note 1 at 1675. 

[4] Id.

[5] Id.

[6] Id. 

[7] Matt Turner & Anushree Singh, Here’s how Much Paid Leave New Mothers and Father get in 11 Different Countries, Business Insider (Sept. 7, 2017),

[8] Id. 

[9] Id.

[10] The Maternity Benefit (Amendment) Act, 2017, Gazette of India, pt. II, sec. 1 (Mar. 28, 2017)

[11] Id. 

[12] Id. 

[13] S.S. Rana & Co. Associates, India: Creche Facility Under Maternity Benefit Amendment Act, 2017, mondaq (Jan. 29, 2018)

[14] Id.   

[15] Id. 

[16] Anushree Sharma, All you Need to Know about the Crèche Facility Provision, People Matters (May 30, 2017)

[17] Gerald Manoharan & Sonakshi Das, Crèche is not Kid’s Play: Bridging Gaps- Crèche Facility Under the Maternity Benefit (Amendment) Act, 2017,  Live Law.In (June 22, 2017),

[18] Id. 

[19] Factories Act, 1948, No. 63, Act of Parliament (1948, sec. 48,

[20] Supra Manoharan & Das, note 14. 

[21] The Maternity Benefit (Amendment) Act, 2017, Gazette of India, pt. II, sec. 1 (Mar. 28, 2017)

[22] Creche May Soon be a Must in Offices with 50 Employees, Tribune India (July 17, 2017)

[23] Supra Sharma, note 13. 

[24] Factories Act, 1948, No. 63, Act of Parliament (1948, sec. 48,