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. 2

Wasting My Time in the Waiting Line: Solutions for Improving the Afghanistan and Iraq Special Immigrant Visa Programs

by Nadia Abramson ~ Sep 18, 2015

Thousands of U.S. Army allies in Afghanistan and Iraq are in serious danger. As American soldiers leave the Middle East, the local men and women who supported the War on Terror are left behind: Characterized as traitors, these Afghan and Iraqi allies are being threatened, tortured, and in some instances killed. The U.S. Congress, under the leadership of former Senator Edward Kennedy, attempted to rectify this dire situation by creating Special Immigrant Visa (SIV) programs. The Afghan Allies Protection Act and the Refugee Crisis in Iraq Act, both of which were recently amended, grant refugee status to Afghan and Iraqi allies experiencing an ongoing serious threat as a consequence of their association with the U.S. forces. Empirically, the laws have failed to fulfill their intended purpose. With onerous documentation requirements and increased national security protocol in the post-September 11th era, some applicants do not survive the bureaucratic hurdles of the American immigration system. The plight of U.S. allies in Afghanistan and Iraq is a humanitarian crisis, yet scholarship on the SIV programs is seriously lacking. This Note is the first legal work to analyze the amended Afghan Allies Protection Act and Refugee Crisis in Iraq Act, and to propose practical legislative solutions that would improve the SIV programs without compromising national security. 

An International Legal Framework for Surveillance

by Ashley Deeks ~ Sep 18, 2015

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: Several UN bodies, judicial tribunals, U.S. corporations, and individuals subject to foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This Article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing but vague and contested substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the Article offers a more viable and timely solution to the perils of foreign surveillance.


The Cape Town Convention’s Improbable-but-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism

by Charles W. Mooney, Jr. ~ Sep 18, 2015

This Essay is Part Two of a two-part essay series that outlines and evaluates two possible future international instruments. Each proposed future international instrument draws substantial inspiration from both the Cape Town Convention,and in particular, its Aircraft Protocol. In addition to both the Cape Town Convention and the Aircraft Protocol, this Essay will address components of any other Protocol that might enter into force in the future. (For convenience, unless otherwise noted or implied from the context, subsequent references to “Cape Town” refer to the Cape Town Convention, the Aircraft Protocol, and other such Protocols together that might enter into force in the future. More specific references to the “Convention” or a particular “Protocol” refer in particular to the identified instruments.) This Introduction first will provide background on Cape Town then outline the two possible future projects. It will begin by summarizing the project presented in Part One of the essay series. Part One assessed the first project on its merits as well as its feasibility from practical and political perspectives. Part Two will take the same approach in presenting and analyzing the second possible future project.

The Convention and the Aircraft Protocol were opened for signature on November 16, 2001, following a diplomatic conference in Cape Town. While the Convention contains the basic legal regime for secured financing and leasing of equipment, the Aircraft Protocol consists of specialized provisions adapting the Convention for financing and leasing of aircraft and aircraft engines.

The Convention and the Aircraft Protocol provide a legal regime for security interests (“international interests”) in large airframes, aircraft engines, and helicopters. The scope of the Convention’s international interest embraces the interests of a lessor and a conditional seller of an aircraft object. The Convention and Aircraft Protocol also apply to contracts of sale.

At the time the Convention project began, domestic legal systems in many states were inadequate to support secured, asset-based financing. Absent reforms, some transactions could not occur at all; some could only be consummated with higher financing costs; and still others could only be accomplished with the credit support of a state’s sovereign obligations. The Convention and Aircraft Protocol offer the necessary reforms to overcome the inadequacies of domestic regimes and have both been enormously successful. Both the Convention and Aircraft Protocol entered into force on March 1, 2006. The Convention has been adopted by sixty-six Contracting States, including the United States and the European Union, and the Aircraft Protocol by fifty-eight.

The success of both instruments, in particular that of the Aircraft Protocol’s international registry, inspired the development of the first future international instrument outlined in Part One. Part One contemplated the creation of a new international registry, where each adopting state would agree that the new registry would provide that state’s domestic secured transactions registry under that state’s domestic law.

The second project, as explained in this Essay (Part Two), contemplates an international instrument that would be available for adoption and use only by Cape Town’s Contracting States and only in connection with Cape Town. The second project would involve an amendment of Cape Town under which adopting Contracting States would agree to binding arbitration for the benefit of investors (i.e., in Convention terminology, “creditors”) for the purpose of enforcing the Contracting States’ obligations under Cape Town. This enforcement mechanism would be patterned on those that have become common under various bilateral investment treaties (BITs) and certain other international investment agreements (IIAs). Such a mechanism is often referred to as an investor-state dispute settlement (ISDS) or investor-state arbitration.

The proposal for an ISDS presented here is tentative. The goal of this Essay will be to provide sufficient background, analysis, and structure to support the initiation of an informed discussion that would provide for serious consideration of the proposal for a Cape Town ISDS. In addition to the specific proposal for incorporation into Cape Town, this Essay will seek to introduce more generally the idea of incorporating ISDS into transnational commercial law instruments.

The Conundrum of WTO Accession Protocols: In Search of Legality and Legitimacy

by Julia Ya Qin ~ Sep 18, 2015

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: The WTO may prescribe more stringent rules of conduct for acceded members, based on individual accession negotiations. These country- specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain unanswered. Legally, accession protocols effectively modify the rules of conduct contained in the WTO multilateral trade agreements, but the legal basis for so doing remains unclear and the relationship between accession protocols and the WTO agreements undefined. Normatively, differential treatment of acceded members derogates from the WTO principle of nondiscrimination, but does so without proper justification. Confusion over the legal nature of accession protocols and a lack of clear rationale for the country-specific rules have led to problematic jurisprudence, creating uncertainty in the rights and obligations of acceded members vis-à-vis other members of the WTO.

This Article aims to resolve the conundrum of WTO accession protocols by systemically and comprehensively addressing these questions. Building upon existing literature, the author takes a broader comparative and historical approach to an examination of the legality and legitimacy of WTO accession practice. On the question of legality, the Article proposes that WTO accession protocols be best characterized as subsequent practice of an international organization modifying its underlying treaties, and on that basis defines the relationship between accession protocols and the WTO agreements. On the question of legitimacy, the Article identifies the lack of reason and transparency in the accession rules as the main issues, and critiques the “entry fee” theory offered by a WTO panel as justification for all accession rules. The Article then makes suggestions on what should and can be done to mitigate the deficit of legitimacy created by WTO accession practice.


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