The government of Japan has issued a new policy authorizing its military to shoot down foreign (read: Chinese) drones that enter the airspace over the disputed Senkaku/Diaoyu Islands in the East China Sea. China's Ministry of Defense has issued a statement suggesting that such an action would be an "act of war" and declaring that China's manned and unmanned flights...
Events On November 12, the T.M.C. Asser Instituut in The Hague will launch the International Crimes Database (ICD). This platform offers a comprehensive database on international crimes adjudicated by national, international and internationalized courts and will provide access to a range of information not just for lawyers and judges but also for students, academics, families and communities of victims of crimes,...
I am honored to have such a brilliant and prominent set of interlocutors from across the world discussing my book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. I am grateful for the sharp insights each of my commentators brings, and humbled by the praise they offer. Each of the commentators has selected a different aspect of the book to focus on in his or her remarks, and so I will respond to each in seriatim, chronologically.
Professor Michael Birnhack (Tel-Aviv) focuses on glocalization—the conforming of a global service to the local laws of the countries that it serves. Professor Birnhack is familiar with this phenomenon, having studied it himself in connection with the transfiguration of global copyright as it encounters local norms. Both glocalization and and its limiting principle—harmonization—are highly complicated processes. Professor Birnhack wisely observes that glocalization and harmonization are both subject to power variations across the world. This is an important insight—certain countries, industries, corporations, transnational organizations or interests are likely to hold more sway than others in determining any eventual balance between glocalization and harmonization. That would probably be true even if there were a global plebiscite, a possibility that seems quite remote. But Professor Birnhack notes that these shortcomings in the glocalization and harmonization principles I suggest do not render them unwise, as other alternatives are likely to prove worse along the metric he describes.
The University of Bern’s Mira Burri , editor with Professor Thomas Cottier of an important collection of papers on digital trade governance, elegantly describes the major shifts in international trade made possible by the Internet. Her broad perspective makes her an ideal interlocutor. She strikingly observes that “we are faced with a radically ‘messy’ governance landscape with many and overlapping institutions and actors of state and non-state nature, the effects of whose actions transcend national boundaries and cannot be neatly contained and controlled.” She characterizes the principles proposed in The Electronic Silk Road as follows: “The freeing of trade is matched by a batch of principles of regulating trade that are meant to ensure balance, provide for security and trust in cyberspace.”
I proposed that Opinio Juris invite Professor Paul Stephan (Virginia) because I admire his writing and hoped for a critical voice, and he hasn’t disappointed.
I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY's recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi's ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House's Elizabeth Wilmshurst was the moderator. I don't believe the symposium...
This week on Opinio Juris, Ken contributed a post on legally distinct corporate entities and agency theory in Bauman v Daimler AG, Chris wrote about Russia's Realpolitik towards former USSR members that are seeking closer contact with the EU, and Deborah wrote about due process in targeting. Julian noticed how Russia had taken a leaf out of China's book by walking out of an...
Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China's rejection of Annex VII UNCLOS Arbitration may have influenced Russia's similar rejection of UNCLOS proceedings in the Greenpeace arbitration. Other commenters take issue with my further claim that Russia's rejection is another "body blow" to ITLOS dispute settlement. I offer my ("typically...
It has been an eventful news week in the universe of U.S. targeting debates. Amnesty and Human Rights Watch released their reports detailing some of the civilian costs of drone strikes. A bit earlier, UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson, issued an interim report on his findings thus far about targeted killing (though I think...
In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence. It's decisions like these that make...
Your weekly selection of international law and international relations headlines from around the world: Middle East Yemen has taken control over hundreds of al-Qaeda inmates who tried to escape after they staged a mutiny in Sanaa prison. The Friends of Syria group of Western and Arab foreign ministers are meeting in London hoping to persuade opposition leaders to attend a peace conference in...
Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR. Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting...
The Electronic Silk Road is a fantastic read, literally bridging Bangalore with Silicon Valley, showing us how the activity of trade has dramatically changed and how these changes require us to think about “Trade 2.0” rules. Prof. Chander discusses both private and public law issues, domestic and international rules.
I want to focus my comments on international trade law rules, of the WTO type, that is, the rules imposed by treaty on governments, which generally prevent governments from doing certain things (e.g. prevent them from restricting trade or enacting domestic laws that discriminate against foreigners). When discussing “rules” and the internet, internet companies get nervous: they assume that the rules will limit them and thereby limit innovation. The rules I am talking about here are limiting what governments can do and, in general, are there to protect or enable (not restrict) internet-reliant companies. Although Silk Road describes in detail what has changed and sets out basic principles as to how rules could respond to these changes, I was, at times, missing a level of detail allowing us to make progress on the ground.
I see two main types of governmental actions that need curtailing by trade rules. First, governments restricting the flow or storage of data across/outside their territorial borders (e.g. a country requiring that Google or Citibank store all of its data within the country, or a country stopping or censoring the flow of information/network connection coming from/going abroad). Second, governments taking, or eavesdropping on, information stored or transferred by companies or individuals in (or even outside) their territory (e.g. a country forcing Facebook to hand over certain data or “spying” on data transferred over the internet).
Are today’s WTO rules able to reign in these two types of government interventions with the toolbox of either rules on “trade in goods” or “trade in services”?
