Myth Meets Reality: Civil Disobedience in the Age of the Internet

by Bryan H. Druzin & Jessica Li

Controlling the information available to citizens is vital to the preservation of political power, and it is one of the essential means by which authoritarian regimes sustain political monopoly. However, with the advent of the Internet, the world of communications has undergone a revolution, creating new possibilities that challenge government control over channels of information, and, by extension, public opinion. Many have asserted that the Internet is uniquely immune to government control. As such, it has been widely posited that Internet technology will precipitate the demise of the authoritarian state. The recent revolutions that set the Arab world aflame, known as the Arab Spring, seem to support this assertion. The Arab Spring has engendered a widespread sense of inevitability that Internet technology, such as social media, will empower opposition movements worldwide. Indeed, the Internet is now broadly hailed as an unstoppable democratizing force for the world.

Yet for anyone who cares to look, China defies this simplistic paradigm. China has been stunningly successful in neutralizing the political power of its Internet. The protests calling for universal suffrage that erupted on the streets of Hong Kong this autumn tell us something important about the political potency of the Internet with respect to China. The failure of the “Umbrella Revolution” to spark wider protests in the rest of China — or even among the greater Hong Kong population — belies the simplistic notion that China is a political tinderbox waiting to be ignited by the correct dose of Internet liberalization and online activism. If the protests in Hong Kong could not galvanize wider dissent even within this unique pocket of China afforded all the legal and technological advantages available, how then can different results ever be expected in the rest of China? Prior to the Hong Kong protests, the international community had yet to witness a Chinese society boasting an advanced use of Internet technology and social media engaging in large-scale public protest. As such, the protests provided a unique opportunity to test the popular meme that the viral nature of social media, once properly activated, is a juggernaut force for political transformation. The Hong Kong protests were a test of this supposition — one that failed.


Drone Law: A Reply to UN Special Rapporteur Emmerson

by Michael N. Schmitt

In January 2013, Ben Emmerson, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, began examining the use of remotely piloted aircraft (RPA or “drones”) in extraterritorial lethal targeting, commonly labeled “targeted killing.” The following October, he released an interim report surveying the legal framework for the operations. It came on the heels of a report on the same topic by UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Christof Heyns. The two documents marked a sea-change in the ongoing debate over RPAs. Sophisticated yet accessible, the reports surgically dissected jus ad bellum (law governing the resort to force by States), jus in bello (international humanitarian law or IHL), and human rights norms. Together, they helped disentangle the often emotive, counter-factual and counter-normative dialogue that had obfuscated objective analysis.

This March, Emmerson released his 2013 annual report. It analyzes thirty-seven RPA strikes involving civilian casualties, proffers a sample strike analysis, and includes recommendations. In the report, Emmerson invites States to answer various legal questions regarding which “there is currently no clear international consensus, or where current practices and interpretations appear to challenge established legal norms.” States are to do so in advance of the 27th Session of the Human Rights Council in September. For Emmerson, “[l]egal uncertainty in relation to the interpretation and application of the core principles of international law governing the use of deadly force in counter-terrorism operations leaves dangerous latitude for differences of practice by States. . . . [T]hus an urgent and imperative need to reach a consensus” exists. The author agrees.

This essay examines Emmerson’s queries — replicated verbatim below — in an effort to assist States that answer his call. For States that do not, the analysis can serve as a useful tool in evaluating the responses of other States, as well as refining their own legal policy positions regarding RPA operations. Although the author provides his own views, he makes every effort to highlight competing positions.


What Price Financial Stability? Evaluating the European Union Financial Transactions Tax

by Andrew W. Hartlage

Though the global financial crisis reached an identifiable peak in the United States in September of 2008, events unfolded more slowly in the European theater. Banking crises in Cyprus, Greece, Iceland, and Ireland were punctuated by the failures of large financial institutions in Germany, the United Kingdom, and the Benelux countries. Similarly, while the United States reached a significant landmark along its path of financial reform with the passage in July 2010 of the Dodd-Frank Wall Street Reform and Consumer Protection Act,  Europe’s progress has been piecemeal, moving with fits and starts at the national, supranational, and international levels.

Despite some modest progress, significant threats to financial stability in Europe remain unaddressed, and the work of shoring up the European financial system continues. In February 2013, as part of this ongoing programme, the European Commission (“Commission”) proposed that some Member States levy a uniform tax on financial transactions beginning in 2014. This tax, known as the European Union Financial Transactions Tax (“EU FTT”), would apply to financial transactions between or with residents of participating Member States, and to transactions involving securities issued in participating Member States or derivatives of such securities.

This Essay argues that the EU FTT as proposed is flawed policy. Part I discusses how the European Union’s responses to the problem of financial stability are constrained by provisions in the EU’s foundational treaties. Parts II and III discuss the proposal’s wisdom as a matter of policy, and conclude not only that the EU FTT does little to solve the problems of financial instability in Europe, but also that the EU FTT threatens to undermine concurrent regulatory efforts to improve financial stability.


The Small Steps of the SPEECH Act

by Bruce Brown & Clarissa Pintado

     It had become the go-to punch line for English lawyers attending libel conferences in the United States. Speaking at a podium or debating on a panel, asked to explain a decade of growing defamation litigation in Britain against American authors and news organizations, they would shrug their shoulders and quip, with a nod to the late, great Johnny Cash, that London had indeed turned into a “town named Sue.”

     For many years, the joke was on us. Foreign libel plaintiffs had a considerable upper hand over American defendants in U.K. courts. By bringing suit in England, they could circumvent "actual malice" rules under New York Times Co. v. Sullivan and other substantive First Amendment rights.  What is more, contrary to the standards in the United States, English courts were willing to assert personal jurisdiction over a defendant publisher who was not deliberately targeting a British audience.

     That jurisdictional practice had a particularly significant impact in the age of online publishing when posting news articles on a domestic website makes the material available instantaneously around the world. Lack of due process added to a lack of free speech protections and made for a lethal combination. Not only did English defamation law tilt the scales dramatically toward plaintiffs, it also encouraged individuals to bring suit in the United Kingdom even if they had tenuous ties to the forum and the defendant virtually none.

     The SPEECH Act was a measured and modest response to a significant problem that had created a tangible chilling effect on publishers in this country. Enacted in 2010, the SPEECH Act held strong against its first challenge in federal court when the Fifth Circuit opted not to enforce a default defamation judgment from Canada against a Mississippi blogger. In Trout Point Lodge v. Handshoe, the plaintiffs failed to prove the two prime elements of the SPEECH Act: that is, that Canadian defamation law is not as protective of free speech as U.S. law and that defend-ant would have been found liable in a Mississippi court. Handshoe had posted content on his Gulf Coast online forum linking Trout Point to a corruption scandal in Jefferson Parish, Louisiana. In its claim, Trout Point did not make sufficient assertions regarding a key element that a plaintiff must show to comport with U.S. Constitutional standards: falsity.

     Although Trout Point Lodge represents the utility of the SPEECH Act against international forum shopping, the legislation has its critics. The Professors David Anderson and Mark Rosen do not always agree with each other on what they believe is wrong with the SPEECH Act, but they are both critical of Congress's modest but important steps in this area. While this article will briefly respond to their criticisms, much credit is due to the professors for giving the legislation - and the issues behind it - some much-needed academic attention. This is the phenomenon of "libel tourism." While England was not the only problematic foreign jurisdiction, it was by far the most notorious - the "libel capital of the world" - with several high-profile cases that resulted in complete capitulation from publishers. For American media companies, the threat of libel tourism had developed into a real concern. Media defendants were settling suits abroad as U.S. enforcement uncertainties loomed.





Are the ICSID Rules Losing Their Appeal? Annulment Committee Decisions Make ICSID Rules a Less Attractive Choice for Resolving Treaty-Based Investor-State Disputes

by Paul B. Maslo

     Most international investment agreements mandate use of the International Centre for Settlement of Investment Disputes (ICSID) rules for resolving treaty-based investor-state disputes. One of the primary advantages to arbitrating under the ICSID rules is efficiency. In arbitration, finality reigns supreme. The remedy of annulment - designed as a severe censure to cure only the most egregious violations of the arbitral process - constitutes a limited exception to the principle of finality under the ICSID rules.

     The review committees' decisions in Sempra Energy International v. Argentine Republic and Enron v. Argentine Republic, appear to have departed from this standard by couching serious errors in the application of the law as complete failures to apply the law, thus providing grounds for annulment based on the tribunals having manifestly exceeded their powers. If annulment committees continue to blur the distinction between misapplication and nonapplication of the law, the ICSID annulment provision could soon be seen as a disadvantage, effectively negating some of the primary benefits of arbitration: expediency and finality.





VOLUME 55 :: No. 1

Crossing Borders in International Development: Some Perspectives on Human Rights, Governance, and Anti-Corruption

by Hassane Cissé ~ Dec 01, 2014

In a world that has been made smaller and more interconnected by technological advances, the theme of today's discussion--Crossing Borders: Rethinking International Development--is deeply relevant to current debates about futre directions in international development. I would like therefore to share some thoughts on the paradigm of development as a freedom and in this context, will focus in particular on the nexus between governance and anti-corruption (GAC), human rights, and development.

Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes

by Susan D. Franck ~ Dec 01, 2014

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal state politics, this Article offers the first analysis of ITA outcomes, focusing on respondent states’ development status while simultaneously controlling for states’ democracy levels. Using a dataset of 159 final ITA awards from prior to January 2012, the Article conducts quantitative analyses of outcomes as a function of raw wins and losses, amounts awarded, and relative investor success. Initially, when evaluating outcomes based on a respondent state’s membership in the Organisation for Economic Cooperation and Development (OECD) or a state’s score on the UN Development Programme (UNDP) Human Development Index, it was not possible to identify a reliable link to outcomes. Only defining a respondent’s development status using a World Bank classification generated reliable differences for Upper-Middle income states, and only for two measures of outcome — namely raw wins and amounts awarded. Using the World Bank measure, there was no statistically significant relationship with relative investor success.

None of these analyses, however, controlled for the level of internal state democracy to identify how democracy levels, which can reflect good governance infrastructure, might contribute to outcomes. After controlling for the effect of a state’s internal democracy levels, twelve analyses were unable to identify a reliable link with ITA outcomes and development status irrespective of how development status was defined. While the Article cannot conclusively exclude the possibility of systemic bias in ITA against the developing world, it provides additional evidence suggesting the potential absence of such bias or the importance of alternative explanatory variables. The results also suggest that focusing on development status alone may be unwarranted, and future research should explore internal levels of democracy or other indicators of good governance, which could be associated with the decreased risk of a state loss. The Article concludes that normative choices focused solely on respondent state development status miss an opportunity to craft normative solutions tailored to redress tangible problems. By focusing on variables that demonstrably contribute to variance in ITA outcomes, stakeholders could construct more appropriate international dispute settlement processes in a time of international economic transition.

When Are International Crimes Just Cause for War?

by Margaret M. deGuzman ~ Dec 01, 2014

At the 2005 World Summit, states unanimously acknowledged their responsibilities to protect people from genocide, war crimes, ethnic cleansing, and crimes against humanity, and they declared their readiness to use collective force to that end if necessary. This endorsement of the “responsibility to protect” (RtoP) represents an important step on the road to developing a norm of legitimate humanitarian intervention. However, there is a critical flaw in the way states framed RtoP at the World Summit: They equated the just cause threshold for humanitarian intervention with the commission of international crimes. This was a mistake because just cause for intervention should depend on the gravity of actual or threatened harm, not on whether that harm constitutes a crime, let alone an international crime. This Article argues that there are three deleterious consequences of framing RtoP in this way: (1) It excludes situations of catastrophic, unintentional harm where intervention may be morally justified; (2) it impedes efforts to prevent all levels of harm by requiring a finding that crimes are occurring or threatened before RtoP applies; and (3) it threatens to undermine the international criminal law regime by encouraging people to think of international crimes exclusively as “atrocities” and by obscuring the difference between humanitarian intervention and aggression.

Retooling TRIPS

by Patricia L. Judd ~ Dec 01, 2014

The TRIPS Agreement is facing a crisis of legitimacy. Initial backlash over its potential intrusiveness and lack of balance has given way to resignation and under-utilization, especially with regard to the Agreement’s groundbreaking enforcement text and flexibilities provisions. These two sets of provisions, arguably the most important in TRIPS, sit dormant while parties complain about the Agreement’s underperformance and seek new forms of regulation outside the World Trade Organization (WTO). Meanwhile, inside the WTO, conversations in the TRIPS Council and the Ministerial Conference focus on the question of whether to expand the TRIPS toolbox to include non-violation complaints, which would allow members to bring dispute resolution cases regarding measures that act to undermine an expectation, though not necessarily to violate the Agreement.

These conversations about expanding the TRIPS toolbox focus on the wrong question. The pertinent question is why parties to the Agreement are not using the tools they already have, especially when it comes to enforcement and flexibilities. This Article argues that greater use of “as applied” violation complaints — a tool available to TRIPS parties now — has a good chance of improving the Agreement’s performance, especially in the areas of enforcement and flexibilities. Better use of “as applied” complaints may obviate the need to add the wild card of non-violation to the arsenal. Furthermore, this Article posits that even if the use of “as applied” complaints proves difficult or unsuccessful for certain parties, this outcome is informative. Right now, no one knows the extent of the TRIPS Agreement’s current capabilities because those capabilities remain untapped. Testing TRIPS by making full use of the tools in its arsenal can inform conversations about the need for new tools — perhaps non-violation complaints — and the need to supplement TRIPS with other instruments. Until members are willing to test the full potential of the TRIPS Agreement’s current provisions, conversations about new tools and new instruments are premature.

The Cape Town Convention’s Improbable-but-Possible Progeny Part One: An International Secured Transactions Registry of General Application

by Charles W. Mooney, Jr. ~ Dec 01, 2014

This Essay is Part One of a two-part essay series, which will outline and evaluate two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and the Aircraft Protocol. For convenience, unless otherwise noted or implied from the context, references to the “Convention” or to “Cape Town” refer to the Cape Town Convention and the Aircraft Protocol together. This Introduction first provides background on the Convention and then outlines the two possible future projects. The remainder of Part One will assess the first project on its merits as well as its feasibility from practical and political perspectives, while Part Two (to be published separately) will do the same with regard to the second possible future project.

As I have explained elsewhere, in 2001, the government of South Africa hosted a diplomatic conference in Cape Town jointly sponsored by the International Institute for the Unification of Private Law (UNIDROIT) and the International Civil Aviation Organization (ICAO). Sixty-eight states and fourteen international organizations participated in the conference. On November 16, 2001, following almost three weeks of intensive work and negotiations, the Convention and the Aircraft Protocol were opened for signature. The Convention contains the basic legal regime for secured financing of equipment. The Aircraft Protocol, on the other hand, contains specialized provisions necessary to adapt the Convention to the financing of aircraft and aircraft engines. The Convention cannot apply on a stand-alone basis; it can apply only in connection with a protocol covering a specific type of equipment.

The Convention establishes an international legal system for security interests (which it calls “international interests”) in aircraft objects — large airframes, aircraft engines, and helicopters. The goal is to facilitate efficient secured financing. In addition to conventional secured transactions, the scope of the Convention’s “international interest” also embraces the interests of a lessor and a conditional seller of an aircraft object. The Convention also applies to contracts of sale covering an aircraft object. At the time the Convention was conceived and during its development, the manufacturers of commercial aircraft equipment expected to sell, and airlines worldwide expected to buy, more than a trillion dollars’ worth of products. But local domestic legal regimes in many states were (and many remain) inadequate to support secured, asset-based financing. Without needed legal reforms, some desirable transactions would not take place, other financings would be completed only with higher financing costs, and financings might only go forward with the support of the sovereign credit of states in which airlines are based. The Convention provides the necessary reforms to treat these inadequacies.

The Game Changer: How the P5 Caused a Paradigm Shift in Norm Diffusion Post-9/11

by Catherine Moore ~ Dec 01, 2014

This Commentary recognizes a policy shift across nations of favoring national security over human rights and argues that smaller states were influenced by the key international decision makers, the Permanent Five Members (P5) of the United Nations Security Council, via norm diffusion. In doing so, it offers an alternative theory for how and why human rights norms have consistently been violated in the pursuit of security. Oppressive regimes have used the term “counterterrorism” or “national security” to justify rights violations because they see larger powers allowing these violations. This Commentary contends that the P5 are responsible for beginning this phenomenon and in doing so created a paradigm shift in the types of norms that are diffused globally, resulting in “negative norm diffusion.”

Consistently Inconsistent: U.S. LNG Exportation Policy and the WTO

by Michael P. Smith ~ Dec 01, 2014

Efficiency advances in natural gas extraction and development, as well as a shift in global economics, have led to a surge in global liquefied natural gas (LNG) demand in the United States. At the same time, pervasive environmental concerns heighten the stakes for expanding upstream natural gas development and downstream LNG exportation. While U.S. licensing for LNG exportation contemplates such environmental issues under its “public interest analysis,” the United States requires this inquiry only for countries with which it lacks a free trade agreement (FTA). Based on the United States’ bifurcated exportation policy, there is a two-step review to determine whether U.S. LNG exportation policy is consistent with its obligations under the World Trade Organization (WTO), and, if not, whether the United States can justify its policy by invoking a General Agreement on Tariffs and Trade (GATT) exception. In analyzing this issue, theoretical explanations generally focus on the first step of the analysis, concluding that the facial bifurcation is a per se violation of the United States’ WTO obligations. On the other hand, when scholars and practitioners proceed further to analyze potential GATT exceptions, policy considerations become outcome-determinative and exceptions invariably apply.

This Note argues that U.S. LNG exportation policy is inconsistent with its WTO obligations, and despite the merits of such a policy, those differences may not be reconciled by invoking a GATT environmental exception. Consequently, if U.S. policy remains unchanged, the United States risks frustrating non-FTA partner countries that increasingly demand natural gas exports, creating an internally conflicted trade policy, losing credibility to challenge other countries, and even succumbing to successful challenges before the WTO.


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