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. 3

Re-Thinking the Principle of Proportionality Outside of Hot Battlefields

by Charles P. Trumbull IV ~ Dec 22, 2015

The United States’ targeted strikes against al-Qaeda, the Taliban, and associated forces outside of Afghanistan have generated significant controversy on both legal and policy grounds. This Article argues that while enemy combatants can be targeted outside of hot battlefields under international humanitarian law (IHL), the traditional rule regarding collateral damage must be re-examined in these circumstances. The Article brings to light the serious problems with applying the principle of proportionality— which permits attacks so long as the expected collateral damage is not excessive in relation to the military advantage anticipated—outside of hot battlefields. It does so by examining this principle’s unique historical development, potential ethical justifications, and key differences in the legal framework applicable in international armed conflicts (IACs), where the principle applies as a matter of treaty law and non-international armed conflicts (NIACs). As a historical matter, the principle of proportionality developed in the context of IACs, where civilians were considered enemies due to their various roles in furthering the war effort of their nation. The laws of war permitted significant civilian casualties in these contexts because civilians were deemed partially responsible for the armed conflict and thus liable to share in the hardships of war. However, civilians residing outside of hot battlefields cannot be considered enemy civilians in many circumstances, as they may play no role in the underlying conflict. As such, we should question on legal and moral grounds whether these civilians should be subject to the same risks as civilians in IACs who contribute to, and potentially benefit from the conflict. Moreover, the balance struck by the principle of proportionality between military necessity and humanitarian objectives assumes that state parties in an IAC will take additional precautionary measures, consistent with their treaty obligations in IACs, to protect civilians. This assumption may not be warranted in NIACs, as non-state actors often conceal themselves among the civilian population, exposing innocent civilians to greater risk. Finally, the infliction of collateral damage, even to the extent legally permitted by the principle of proportionality, may undermine key counter-insurgency and jus post bellum objectives. This Article concludes by arguing that the principle of proportionality must evolve to account for civilians’ responsibility for the conflict in determining the degree of collateral damage permitted outside of hot battlefields. 

The Article 51 Reporting Requirement for Self-Defense Actions

by James A. Green ~ Dec 22, 2015

This article examines one legal criterion for the exercise of the right of self-defense that has been significantly overlooked by commentators: the so-called “reporting requirement.” Article 51 of the United Nations (UN) Charter provides, inter alia, that “[m]easures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council.” Although the requirement to report all self-defense actions to the Council is clearly set out in Article 51, the Charter offers no further guidance with regard to this obligation. Reference to the practice of states since the UN’s inception in 1945 is therefore essential to understanding the scope and nature of the reporting requirement. As such, this article is underpinned by an extensive original dataset of reporting practice covering the period from January 1, 1998 to December 31, 2013. We know from Article 51 that states “shall” report, but do they, and—if so—in what manner? What are the various implications of reporting, of failing to report, and of the way in which states report? How are reports used, and by whom? Most importantly, this article questions the ultimate value of states reporting their self-defense actions to the Security Council in modern interstate relations.

When Foreign is Criminal

by Margaret K. Lewis ~ Dec 22, 2015

United States law criminalizes providing material support to foreign terrorist organizations, assaulting foreign officials, accepting campaign contributions from foreign nationals, bribing foreign officials, and transmitting trade secrets to foreign governments, foreign instrumentalities, or foreign agents. These are but a few examples of how foreignness has permeated into a variety of criminal offenses in force today.

There is extensive literature on the trend towards expanding the geographic reach of U.S. criminal laws to include extraterritorial conduct. What criminal law literature has failed to discuss in detail is the decision to single out foreignness as a focus of the criminal law somehow separate and distinct from concerns confined to the American homeland. This Article examines how foreignness is reflected in contemporary U.S. criminal law and encourages caution when including a foreign nexus as a substantive element of crimes. It questions when a foreign link increases the threat of harm or the actor’s blameworthiness such that it makes sense to include foreignness within the definition of an offense. Even if building a foreign/domestic distinction into a criminal statute is justifiable as central to the very nature of the offense, this Article exposes the challenges of even discerning what is “foreign.”

In closing, this Article takes a step back and asks whether creating a polarity between what is domestically American and the rest of the world is a valuable distinction in the criminal law or, in contrast, undermines other values. What do we gain by blatantly specifying “foreign” as an element in defining criminal offenses? And, when we do single out the otherness of “foreign” in criminal statutes, what do we lose?

International Law Before the Courts: the EU and the US Compared

by Gráinne de Búrca ~ Dec 22, 2015

Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors and a related assumption that the US Supreme Court and the EU Court of Justice treat international law very differently, this article examines the approaches of the Court of Justice and the US Supreme Court to the internalization of international law between 2002 and 2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by contrast, is perceived as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been generally viewed—with its WTO jurisprudence seen as an exception—as actively contributing to that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests, however, that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the welcoming judicial arm of an open and internationalist European Union, there are a great many more commonalities between the approaches of the two courts than conventional depictions acknowledge.

Constraining States: Constitutional Lessons for International Courts

by Shalev Roisman ~ Dec 22, 2015

International courts and constitutional courts are really not so different. Both types ofcourt seek to constrain state actors, and both do so without the aid ofa direct enforcement mechanism. Despite these structural similarities, scholars have made very different assumptions about these courts’ potential to constrain state actors. Historically, scholars of international courts have been deeply skeptical of international courts’ ability to constrain states, while constitutional court scholars tended to simply assume that constitutional courts could do so. Yet, there is actually little reason to view the potential of these courts so differently. Both types of court lack the power to directly enforce their rulings against government actors, and both lack any legislative corrective mechanism for erroneous rulings. And, in fact, recently, scholars in both fields have started asking the same fundamental question: how can a court lacking the power of the purse or the sword come to constrain state actors that have these powers? But, thus far, scholars have asked this question in relative isolation from one another.

This Article recognizes this divide in scholarship and seeks to systematically bring these two bodies of thought together, revealing that the constitutional courts literature can provide several contributions to the international courts literature. First, the Article provides an original taxonomy of the international and constitutional court scholarship on judicial empowerment, which shows that, while scholars in both fields have (unintentionally) come up with some very similar theories of court empowerment, the constitutional courts scholarship has spawned prominent theories that have yet to be applied to international courts. Next, the Article provides translations of these theories and other insights developed in the constitutional courts literature to the international context, shedding light on conditions that are likely to enable or inhibit international court empowerment. Finally, the Article argues that reference to constitutional courts can debunk both overly pessimistic accounts of court empowerment that suggest international courts can never gain meaningful power and overly optimistic accounts that suggest that international courts can resolve the highest stakes disputes.

Exempting Humanitarian Intervention from the ICC’s Definition of the Crime of Aggression: Ten Procedural Options for 2017

by Leslie Esbrook ~ Dec 22, 2015

At the ICC’s first review conference in Kampala in June, 2010, states parties and observer nations made significant strides to codify a final piece of the Rome Statute: incorporating the crime of aggression into the Court’s jurisdiction. By consensus, the delegations passed the Kampala Outcome Document, which provides a definition of the crime of aggression, and the delegations agreed to vote on the crime’s entry into force after January 1, 2017. This paper will detail why the current definition of aggression is untenable and why it is in the interest of all nations to consider strategies for limiting the definition adopted by the Kampala Outcome Document. The paper focuses on the definition’s strict interpretation of aggression that does not recognize the possibility for an emerging exception to the UN Charter’s Article 2(4) prohibition on the use of force without Security Council authorization. Part I will describe the historical development of the crime of aggression and outline what was agreed upon at the Kampala conference. Part II will lay out the most preferred policy option for limiting the definition – a partial opt-out declaration under Article 15bis(4) – and will respond to concerns that an opt-out 1) is a reservation prohibited under Article 120, 2) will promote military options over diplomatic avenues, and 3) will fracture the Kampala consensus. Part III will outline nine other procedural strategies for limiting the definition of aggression, ranking them by their ability to legally bind the Court to a more narrow application of the crime, as well as their political achievability. The Conclusion suggests that all nations will be affected by the 2017 decision and advocates for a direct strategy of deliberation in order to approach 2017 with sufficient preparedness.


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