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 54 :: No. 3

Tort Tourism: The Case for a Federal Law on Foreign Judgment Recognition

by John B. Bellinger, III & Reeves Anderson ~ Aug 01, 2014

Under what circumstances will U.S. courts enforce a money judgment rendered by a foreign court? Surprisingly, the answer depends in large part on where the judgment holder seeks to have the judgment recognized in the United States. The current law on recognition of foreign judgments in this country is governed by a patchwork of state statutes and common law principles. Despite the clear federal interest in regulating how U.S. courts treat judgments issued outside the United States, no federal law or treaty governs the conditions under which U.S. courts should — and should not — give full effect to foreign judgments, outside of the narrow category of foreign defamation judgments.

The time has come to rethink our country’s fractured approach to foreign judgment recognition. In an increasingly globalized world where billions of dollars of foreign investment flow across borders daily, individuals and multinational businesses deserve consistency and predictability under a unified and modernized federal law. The past few decades have seen a significant increase in the number of actions seeking recognition and enforcement of foreign judgments in the United States. As explained in this Article, the present patchwork of state laws creates unnecessary challenges for U.S. citizens and businesses facing litigation abroad, including a real risk of forum shopping among states and an inability to contest abusive foreign judgments before they are recognized in the United States. Legal uncertainty also harms judgment creditors, who deserve prompt and dependable recognition of their legitimate foreign judgments. Those who have secured valid foreign judgments should be able to enforce those judgments promptly in the United States under federal law. But individuals and businesses that have been subjected to fraudulent or legally suspect judgments abroad should be able to contest enforcement vigorously under federal law.

The Margin of Appreciation in International Investment Law

by Julian Arato ~ Aug 01, 2014

Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent — and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach — one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible as to admit the application of different standards of review in different contexts. To some, the venerable doctrine of the margin of appreciation appears to fit just this bill — a solution finding growing favor among tribunals and commentators, not to mention advocates for respondent states.

This Article challenges the suitability of the margin of appreciation in the adjudication of investment disputes. This judge-made doctrine is famously a product of Strasbourg, manufactured by the European Court of Human Rights. Its halting import into the global investment regime is only a recent phenomenon. Through comparison to the Strasbourg Court, I suggest that certain key grounds for affording the margin in its original context do not obtain within investment law — calling into question the doctrine’s propriety in its new setting.

Beyond questioning the suitability of the margin of appreciation within ad hoc investment disputes, this Article challenges the broader premise that the problem of fragmented approaches to the standard of review among investment tribunals can be best resolved through judicial recourse to a unified a priori doctrine of deference. As evidenced by the adventures of the margin in several recent arbitral awards, such attempts tend to produce only a pernicious illusion of unity. I argue, instead, that the desired certainty can be achieved only gradually, through judicial practice and dialogue over the medium to long term.

Germany vs. Europe: The Principle of Democracy in German Constitutional Law and the Troubled Future of European Integration

by Russell A. Miller ~ Aug 01, 2014

Germany has been an essential contributor to, and an energetic participant in, the project of European integration. Germany lends Europe the force of its national political will. It has helped conceptualize and theorize — through the work of generations of its intellectuals and scholars — a framework for supranational governance at the European level. And its indomitable industrial economy has helped to bankroll the costly process of inching ever closer toward unity in Europe. To paraphrase the French political scientist Maurice Duverger, there can be no Europe without Germany.

But lately it would be fair to wonder if there can be a future for Europe with Germany. Germany is increasingly pursuing its own interests, sometimes in conflict with what some see as its European commitments. Perhaps worse, many argue that Germany’s Europapolitik (European policies) are doing the project of integration grave harm. If Europe stumbles, if it fails to achieve a fuller form of the “progressive federalism” for which Duverger and generations of Europeanists have struggled, then there is a widening conviction that no small measure of blame can be laid at the feet of a newly self-assured Germany. A smoking gun in the critics’ case against Germany is the Demokratieprinzip, or principle of democracy, that is enshrined in Germany’s Basic Law. This principle of German constitutional law has been at the center of a series of decisions, issued by the Bundesverfassungsgericht (German Federal Constitutional Court) over the last decade, which have presented a profound barrier to European integration. On the one hand, the Constitutional Court’s rulings reveal that domestic tribunal’s continuing willingness to intervene in and superintend the measures necessary for supranational integration. Summoned to that role by the domestic Demokratieprinzip, Germany’s high court has not shied away from serving as a master of European integration. On the other hand, the Court’s substantive interpretation of the principle of democracy has come to consist in a set of concrete limits on Germany’s participation in further European integration. In the Lisbon Treaty Case from 2009 giving force to the principle of democracy, the Court said definitively: “this much Europe and no more.”

All of this justly leads to the inference, blared in an American headline, that the German Constitutional Court judges — as they interpret and enforce the constitutional principle of democracy — “hold Europe’s fate in their hands.” The future of the centuries-old dream of a united Europe now must travel a road that passes through the German Constitutional Court as it applies the German constitution’s principle of democracy.

This Article introduces the Demokratieprinzip. In Part II, I begin by more fully documenting the Euro-skeptical turn in Germany’s relationship with Europe, paying particular attention to the central role played by the Constitutional Court’s interpretation of the Demokratieprinzip. Part III, in four subparts, provides a doctrinal introduction to the principle of democracy. First, I map the principle’s bases in the text of the German Grundgesetz (Basic Law or Constitution). Second, I present the gloss the Constitutional Court has given the principle, making special reference to the Court’s recent decisions involving challenges to Germany’s participation in measures seeking to advance European integration. Third, I deepen our understanding of the Demokratieprinzip by considering the Court’s vision of parliamentary democracy, which has developed into a central component of the broader Demokratieprinzip. Finally, I rebut claims that, for all its rhetorical bombast and headline-grabbing dramatics, the Court’s jurisprudence relying on the Demokratieprinzip as the basis for reluctance towards Europe has not served as a practical barrier to further European integration. In Part IV, I provide greater theoretical insight into the Court’s interpretation of the Demokratieprinzip by demonstrating that it is a nearly complete realization of Jürgen Habermas’s theory of discursive democracy. This highlights two important points. First, contrary to Habermas’s supranational vision for his discourse theory of politics, the Court insists that the principle of democracy find its expression within the framework of the German state. This might be the final attribute of the doctrine as it has been defined by the Court. Second, to the extent that the Constitutional Court’s interpretation of the principle of democracy now constitutes a barrier to European integration, this involves an astounding, historic, and deeply German irony because Habermas has been one of Germany’s most determined and visionary advocates for European supranationalism.

Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions

by Dawood I. Ahmed & Tom Ginsburg ~ Aug 01, 2014

The events of the Arab Spring and recent military coup in Egypt have highlighted the central importance of the constitutional treatment of Islam. Many constitutions in the Muslim world incorporate clauses that make Islamic law supreme or provide that laws repugnant to Islam will be void. The prevalence and impact of these “Islamic supremacy clauses” is of immense importance for constitutional design — not just for Muslim countries but also for U.S. foreign policy in the region, which became engaged in the issue during constitutionwriting in Afghanistan and Iraq. However, to date, there has been little systematic or empirical examination of these clauses. Many questions remain unexplored: Where did these clauses originate? How have they spread? Are they anti-democratic impositions? What determines their adoption in national constitutions?

This Article fills this gap. Relying on an original dataset based on the coding of all national constitutions since 1789 and case studies from four countries — Iran, Afghanistan, Egypt, and Iraq — it traces the origin and adoption of Islamic supremacy clauses since their first appearance in Iran in 1907. We make three major, counterintuitive claims: First, we argue that the repugnancy clause — the most robust form of Islamic supremacy clause — originates in British colonial law, and indeed, that all forms of Islamic supremacy are more prevalent in former British colonies than in other states in the region. Second, we argue that in many cases, these clauses are not only popularly demanded, but are also first introduced into their respective jurisdictions during moments of liberalization and modernization. Third, contrary to the claims of those who assume that the constitutional incorporation of Islam will be antithetical to human rights, we demonstrate that almost every instance of “Constitutional Islamization” is accompanied by an expansion, and not a reduction, in rights provided by the constitution. Indeed, constitutions that incorporate Islamic supremacy clauses are even more rights-heavy than constitutions of other Muslim countries which do not incorporate these clauses. We explain the incidence of this surprising relationship using the logic of coalitional politics.

These findings have significant normative implications. On a broader level, our work supports the view of scholars who argue that the constitutional incorporation of Islam is not only compatible with the constitutional incorporation of basic principles of liberal democracy, but that more democracy in the Muslim world may mean more Islam in the public sphere; in fact, we find that more democratic countries are not necessarily any less likely to adopt Islamic supremacy clauses. Our findings also suggest that outsiders monitoring constitutionmaking in majority-Muslim countries who argue for the exclusion of Islamic clauses are focused on a straw man; not only are these clauses popular, but they are nearly always accompanied by a set of rights provisions that could advance basic values of liberal democracy. We accordingly suggest that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation, than on the Islamic provisions themselves.

“Below the Threshold” Cyber Operations: The Countermeasures Response Option and International Law

by Michael N. Schmitt ~ Aug 01, 2014

Contemporary legal analysis of how States may respond to hostile cyber activities has generally ignored the option of countermeasures, focusing instead on responses grounded in the law of self-defense. A customary law paradigm reflected in Article 51 of the UN Charter, the right of selfdefense, permits States to respond forcefully to “armed attacks,” including cyber operations qualifying as such. This self-defense centric analytical framework reflects State fears of a possible “cyber 9/11” in which another State or a transnational terrorist group mounts a cyber operation producing devastating human, physical, or economic consequences.

Yet, preoccupation with cyber armed attacks is counter-experiential. Few, if any, cyber operations have crossed the armed attack threshold. By contrast, malicious cyber operations below that level are commonplace. For instance, Chinese hackers have penetrated powerful financial institutions like Morgan Stanley and the U.S. Chamber of Commerce, as well as such influential media outlets as the New York Times, Wall Street Journal, and Washington Post. Reportedly, the Chinese government also hires contractors to conduct cyber operations, a prominent example being the “Comment Crew,” which has breached the passive defenses of U.S. defense industries. North Korea appears to have developed a large cyber operations department, India and Pakistan have engaged in nondestructive cyber exchanges, and the Syrian Electronic Army has conducted disruptive operations against media and human rights groups it styles as anti-Assad, like Al-Jazeera, the BBC, National Public Radio, Human Rights Watch, and Anonymous. Perhaps most significantly, U.S. Cyber Command possesses unparalleled capabilities to conduct operations below the armed attack threshold.

This Article examines how and when States may employ countermeasures in response to malicious cyber operations that fail to qualify as armed attacks. The analysis applies equally to the use of cyber countermeasures against non-cyber activities. After discussing the nature of countermeasures, the Article sets out the conditions precedent to taking them in Part II. In Part III, the Article dissects the requirements and restrictions imposed on countermeasures as they apply in the cyber context. The Article concludes that countermeasures can prove an effective response option for States facing harmful cyber operations, but that due to various limitations on their use, they are no panacea. Highlighting their availability will nevertheless hopefully dampen the destabilizing incentive States have to characterize cyber operations as armed attacks, if only to afford themselves a legal basis upon which to ground effective responses.

The American Depositary Revision: Restructuring ADRs for Emerging-Market Investments

by Chad M. Jennings ~ Aug 01, 2014

In U.S. securities markets, investors exchange stocks featuring a broad array of benefits and rights. Brokers and investment banks repackage and market securities that conform to distinctive investment objectives and capital needs. In foreign securities markets, however, there are fewer options available for U.S. investors. Depositary banks make markets in stocks listed on foreign exchanges by obtaining foreign shares and issuing American Depositary Receipts (ADRs) to investors. Though they facilitate foreign investment, depositary banks have not engaged in the kind of financial innovation seen on the domestic front. Instead, banks have gravitated towards a more unified vision of depositary share rights. Yet, both investors and banks could profit if banks adopted a different perspective of ADRs, seeing them not as the functional equivalent of common equity, but rather as a series of rights that can be restructured on a program-byprogram basis. This Note examines the concept of ADR restructuring, noting that under the proper circumstances, modifying ADR holders’ rights could improve foreign issuers’ corporate governance, attract greater investment in ADRs, and ultimately increase profits for issuers, banks, and investors. Particularly in emerging markets, where elevated risks can be offset through greater oversight by the depositary bank, restructuring ADRs has the potential to generate income and open new avenues of foreign investment.

The Responsibility to Solve: The International Community and Protracted Refugee Situations

by T. Alexander Aleinikoff & Stephen Poellot ~ Apr 01, 2014

Today, more than half of the world’s nearly twelve million refugees are in protracted refugee situations and the vast majority are not on the road to a durable solution. We contend that the international community has a legal and moral duty to seek solutions to long-term refugeehood. We call this duty the “Responsibility to Solve” (R2S) and present three arguments for its recognition. The first flows from the human harms imposed on those left in the limbo of refugee status for an extended period of time; the second focuses on principles that underlie the international refugee regime, of the centrality of solutions and the necessity of burden-sharing; and the third derives from specific commitments of members of the UN General Assembly and signatories to the Refugee Convention to cooperate with UNHCR in seeking solutions. Recognition of R2S would provide a rhetoric and a moral fulcrum for renewed attention to solutions, in turn leading to enhanced funding for returns and local integration as well as more resettlement opportunities. It would also remind us that the principle of non-refoulement — while at the core of refugee protection — is not the ultimate goal of the international refugee regime. The responsibility of the international community to refugees is not simply to support camps or other arrangements that provide assistance to refugees; it is to end the condition of being a refugee.

Beyond Truth and Punishment in Transitional Justice

by Matiangai V.S. Sirleaf ~ Apr 01, 2014

Many societies have had to deal with issues of truth and punishment following a period of massive human rights violations. This paper evaluates the search for justice in the aftermath of atrocities in Ghana, Sierra Leone, and Liberia by examining each country’s approach to truth-telling and punishment. It demonstrates that scholars and practitioners have misplaced confidence in the ability of truth commissions and trials to contribute towards restorative, retributive, expressive, and utilitarian goals. It assesses the contribution of these mechanisms to their stated objectives from the perspectives of victims and the affected societies by using data gathered from field research. This paper finds that the combined use of truth and punishment mechanisms can produce mutually reinforcing effects on each mechanism’s ability to carry out its stated objectives. It argues that it is critical to limit the number of goals to which truth commissions and trials can reasonably be expected to contribute, as opposed to burdening them with multiple objectives, thereby creating unattainable expectations. Finally, this paper concludes that each institution should focus on its comparative advantage and pay careful attention to the messages sent regarding what the commission or trial can actually be expected to accomplish.

The First Condition of Progess? Freedom of Speech and the Limits of International Trade Law

by Tomer Broude & Holger P. Hestermeyer ~ Apr 01, 2014

Can international trade law be utilized to promote the freedom of speech in the face of repressive censorship? Even before Google’s abrupt departure from China, associated with Chinese restrictions on speech, academics and advocates argued that the World Trade Organization dispute settlement system can be used to promote freedom of speech and access to information in China and elsewhere by targeting internet censorship as an illegal trade barrier. If this were indeed one area in which international trade law might protect a human right in the face of adverse political restrictions, it could serve as a powerful vindication of economic liberalization that is otherwise often considered to contradict or compromise human rights. Through careful analysis of the gaps between human rights and international trade law we take a skeptical perspective towards this line of thinking, arguing instead that international trade disputes relating to censorship (such as a potential “Google” case) are indifferent towards the freedom of expression and ultimately promote economic interests with little, if any, impact on restricted speech.

Legal Vortex in the Strait of Hormuz

by James Kraska ~ Apr 01, 2014

The regime of straits used for international navigation is one of the central features of the United Nations Convention on the Law of the Sea (UNCLOS). Neither the United States nor Iran, however, are party to UNCLOS, and the two adversaries disagree about the application of the treaty to relations between them in the Strait of Hormuz. Iran claims that the generous navigational provisions in UNCLOS may only be enjoyed by states that are party to the Convention. The United States claims that the right of transit passage in UNCLOS is reflective of customary international law, and therefore applicable to non-parties. Transit passage permits an unrestricted right to travel on the surface, under the water, or in over flight through international straits. The dispute is complicated by Iran’s claim to a territorial sea that is twelve nautical miles in width — another key provision of UNCLOS, which departs from the historic norm of three nautical miles. Iran claims that the twelve nautical mile territorial sea is now part of customary law, but rejects the notion that other states enjoy the right of transit passage. The two regimes, however, are inseparable — Iran may not have a twelve nautical mile territorial sea, and yet disregard the rights of other states to exercise transit passage in the Strait of Hormuz.

How to Train a Toothless Dragon: Finding Room for Improvement in China’s Transfer Pricing Regulations

by Jessica L. Ho ~ Apr 01, 2014

One of the unintended consequences of economic globalization is the rise of transfer pricing manipulation, through which companies use international networks to shift their profits in order to minimize (or even eliminate) tax liability. China, for example, remains a top destination for foreign investment, yet it saw fifty-five percent of companies with foreign investment reporting an operating loss as late as 2005, primarily as a result of rampant transfer pricing manipulation practices. In an attempt to mitigate the loss of millions of yuan in tax revenue, the Chinese government passed a series of reforms in 2008 to minimize transfer pricing manipulation through enhanced reporting requirements, increased penalties, and Advance Pricing Agreements. The reforms have increased transaction transparency to some extent, but greater efficacy is hampered by local tax officials who often are unable or unwilling to utilize the reforms’ heightened reporting measures to detect transfer pricing problems. This Note argues that, if the Chinese government is truly interested in discouraging transfer pricing manipulation, then it should instead pass regulations that focus on ex post review and enforcement. Specifically, the government could better educate its local tax officials to recognize transfer pricing issues and also could cooperate with tax authorities in other countries to share information about transfer pricing offenders. Transfer pricing manipulation is a difficult issue to resolve, but it is important to consider how Chinese regulations targeting this issue can improve, particularly as China continues its transition to a new national leadership.

Problematic Precedents: The Conflicting Legacies in the Genocide Jurisprudences of the International Criminal Tribunal for the Former Yugoslavia

by Kendra Wergin ~ Apr 01, 2014

This Note presents the first comprehensive review of the genocide jurisprudence of the International Criminal Tribunal for the former Yugoslavia. While the Tribunal has issued several convictions for genocide committed in Srebrenica in 1995, it has failed to convict every person charged with genocide in other Bosnian municipalities during 1992. These acquittals rest principally on the complicated analysis of the mens rea component of the crime of genocide. This Note identifies the conflicting legal reasoning applied in the municipalities cases and explains the implications of these precedents for the two remaining genocide cases against former Bosnian Serb President Radovan Karadžić and General Ratko Mladić.

Public and Private in International Investment Law: An Integrated Systems Approach

by Julie A. Maupin ~ Apr 01, 2014

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private law and public international law from private international law. In light of these overlaps, the regime should instead be analyzed from an integrated systems perspective. This approach better comports with the regime’s complex interlocking nature. It is also better suited to the pragmatic challenge of accommodating the conflicting claims of diverse stakeholders within the confines of an outmoded but rapidly evolving legal schema. I illustrate this with concrete examples of minor interventions at three different levels of the regime that could produce major shifts in the prevailing balance between investor and non-investor rights at other levels of the regime.


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