GJIL Vol. 42
Jonathan J. Rusch, Iago's Net: Notes For An International Legal Regime To Combat Identity-Related Crime
Vast numbers of people and businesses around the world are discovering that they have become victims of identity-related crime, with costs in the tens of billions of dollars. This Article analyzes, and offers a coherent response to, the increasingly global problem of identity-related crime. Section II of the Article explores the nature and extent of the problem, focusing on factors that have made identity-related crime more feasible and profitable than ever before. It next discusses identity-related crime as a cycle of criminal activity that falls into five distinct phases: (1) the initial acquisition of personal identifying information (PII), whether in the form of physical items or data; (2) the initial transfer of those items or data; (3) the manipulation of those items or data when necessary to make them useful to others, whether the manipulation takes the form of alteration, compilation, or counterfeiting; (4) the transfer of the manipulated items or data; and (5) the use of the items or data for some criminal purpose, including fraud and concealment of criminal identity. It also identifies the principal financial and non-financial harms that identity-related crime causes, and discusses significant characteristics of the victims and criminals involved in identity-related crime.
Section III of the Article proposes an approach to developing an international legal regime to combat identity-related crime. It first identifies and analyzes legal norms pertinent to identity-related crime that are reflected in existing international conventions such as the Council of Europe Cybercrime Convention and the United Nations Conventions Against Transnational Organized Crime and Corruption, national criminal and civil codes, and other sources of authority. It then explains how these pertinent legal norms can be reified through those international conventions, national statutes, and other measures.
Scott J. Shackelford & Richard B. Andres, State Responsibility For Cyber Attacks: Competing Standards For A Growing Problem
At a time in which the unchecked sovereign authority of States is being challenged across many arenas, State responsibility remains a key component of international security. However, defining State responsibility in cyberspace has proven to be difficult given both the speed and anonymity of cyber attackers. Sponsoring States may, for example, incite groups to commit cyber attacks and then hide behind a (however sheer) veil of plausible deniability to escape accountability. This Article analyzes potential legal regimes of State responsibility to help hold these State sponsors of cyber attacks more accountable, including the effective and overall control standards. Other lesser-known standards are also reviewed, including the governmental awareness and the sliding scale approach. These regimes are then applied to real examples of State sponsorship, from the Estonian cyber militia to cyber criminals in Africa, including instances of neutral States allowing their networks to be used for launching cyber attacks thus giving rise to problems of neutrality and distinction that is analyzed under the Law of Armed Conflict. The Article concludes by arguing for the adoption of a flexible standard of State responsibility for cyber attacks given the extreme difficulties involved with proving the identity of cyber attackers.
Teresa Scassa & Robert J. Currie, New First Principles? Assessing The Internet's Challenges To Jurisdiction
The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate "space" and many refer to state jurisdiction over Internet activities as "extraterritorial." This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on any one substantive area. This article argues that while the Internet may push at the boundaries of traditional principles of jurisdiction in public international law, it has not supplanted them. The article explores the principles of jurisdiction, including the evolving concept of "qualified territoriality," and demonstrates how these principles continue to apply in the Internet context. The article examines how states exercise their authority with respect to Internet activities by addressing governance issues, by engaging in normative ordering for the Internet, and by extending the reach of their domestic laws to capture Internet-based activities. Lastly, the article concludes by offering a set of "first principles," in the form of policy precepts, to guide the evolution of public international law norms and to address problems particular to the context of the global Internet.
Robert A. Heverly, Breaking The Internet: International Efforts To Play The Middle Against The Ends—A Way Forward
The Internet was originally designed to provide robust transportation protocols for data transmission packets regardless of their content. While many arguments can be (and have been) made in defense of this approach, it is not the only approach. It was and is a choice, though one that has been largely maintained in the short history of the Internet’s existence.
Since the widespread adoption of networking technologies worldwide, efforts have been made internationally to fundamentally alter the way in which the Internet functions. A number of strategies or issues have recently come to the forefront in this regard including encryption, ISP data retention, “graduated response” rules, and rendering sites "invisible” by altering network functioning. The Net Neutrality debate is relevant here, as well.
Together, these efforts are taking place to some extent in the international arena, and all have significant international implications. All in one way or another seek to alter piecemeal the design of the Internet itself in pursuit of some other goal (such as protecting intellectual property rights or pursuing national security). They would all take at least one step toward turning the thin, dumb middle of the Internet into a thicker, smarter element that can be used as a counter to the ends that it connects.
These efforts will have unintended consequences in terms of Internet functionality and usefulness. It is not that the design of the Internet should not be changed. Rather, if the Internet’s functioning is to be fundamentally altered, such changes should follow not from a hodgepodge of national and international requirements resulting in a patchwork quilt of separately adopted, interest-based restrictions, but from international discourse focused on the Internet itself, leading to treaty or convention based obligations on participating governments. To do this properly, an international—as opposed to national or even regional— approach is required.
A number of existing international organizations have at least some potential for facilitating the kinds of discourse and decision-making necessary to maintain a holistic view of not just specific interests but of the overall structure and functioning of the Internet as a system. Each brings to the table characteristics that would assist in maintaining the efficiency of the Internet as a communications
system, but each also suffers from negative characteristics, primarily as to narrowness of focus or to perceptions of special interest capture or control. After considering each of the likely suspects for taking on this important international role, the creation of a new organization is proposed, made up of representatives of many of these existing organizations as well as representatives from non-governmental-organizations dedicated to a future Internet that is robust, efficient, and innovative across a host of measures. Only with such an effort can the promise of the Internet as a communications system be realized.
Dawn C. Nuziato, How (Not) To Censor: Procedural First Amendment Values And Internet Censorship Worldwide
Imagine if an unknown person entered your home on a regular basis and removed books from your bookshelves. You would never be told which books were being taken away, and you would never be given a reason except that someone, somewhere, somehow, deemed them “extremist,” “indecent,” or simply “insulting,” or felt that they might “incite” some form of hatred . . . . Couldn’t happen in a democracy? Guess again. Under the guise of protecting citizens from “smut” and “offensiveness,” Internet filtering programs routinely block access to thousands of World Wide Web search results, home pages, chat rooms, news groups, and other Internet options—in democratic countries as well as in authoritarian states . . . . No one can rely on the Internet anymore as a self-healing mechanism that can defeat censorship or blocking on its own.
Daniel J. Ryan, Maeve Dion, Eneken Tikk, & Julie J.C.H. Ryan, International Cyberlaw: A Normative Approach
Governments, organizations, and individuals around the world seek ways to deal with the Internet’s impact on legal issues such as
jurisdiction, intellectual property, privacy, freedom of expression, foreign policy, terrorism, and the laws of war. Achieving consensus as to what international cyberlaw should be and how it should be applied among and across the many jurisdictions using the Internet will not be easy, nor will it happen quickly. It may be possible, however, to agree on a small number of general principles through a prescriptive approach aimed at establishing the values and norms that satisfy the overall needs and expectations of the international community with regard to the use of cyberspace. This article focuses on cyberlaw relevant to national and international security, and identifies and explicates several principles that can be used to further the colloquium currently underway among academics, legal scholars, and practitioners.
Cynthia Liu, Internet Censorship As A Trade Barrier: A Look At The WTO Consistency Of The Great Firewall In The Wake Of The China-Google Dispute
The recent China-Google dispute captivated the world as it saw the search engine giant separate itself from its peers and face up to the repressive Chinese regime. When negotiations proved fruitless, Google made history by choosing to close its Internet search service in China (google.cn) in order to avoid censoring search results any longer. While the human rights and corporate social responsibility implications of these actions are profound, some have used the China-Google dispute to highlight other avenues for challenging China’s pervasive censorship regime. Internet censorship in China has had obvious impacts on human rights, but perhaps less obvious is the fact that the government has created an increasingly hostile business climate for foreign companies, who are forced to choose between giving up China’s vast market opportunities and acquiescing in its censorship regime. Because recent evidence suggests that much of China’s censoring activities target foreign companies, while their Chinese counterparts remain free from similar restrictions, this paper explores the possibility of challenging such “firewall protectionism” before the World Trade Organization’s Dispute Settlement Body. After analyzing the various WTO obligations that China can be said to be violating, the paper discusses whether a WTO case is an optimal strategy for the United States to pursue in order to bring China to task over its continuing human rights violations.
Jack Mellyn, "Reach Out And Touch Someone": The Growing Use Of Domain Name Seizure As A Vehicle For The Extraterritorial Enforcement Of U.S. Law
In 2010, U.S. federal agents initiated a series of “virtual raids” to shut down foreign-based websites accused of facilitating the
infringement of U.S. copyrights and trademarks. These “raids” reflect a growing trend in U.S. law towards using “real space” jurisdiction over Internet middlemen to enforce U.S. IP law extraterritorially, often against foreign-owned websites with minimal domestic contacts. While this strategy has yielded some success in combating intellectual property infringement in the short term, it undermines the U.S.’s position as the Internet’s “good faith gatekeeper,” raises serious questions of international public policy and international law, and has the potential to fragment the Internet, diminishing its usefulness and its amenability to both foreign and domestic regulation. A better answer to the infringement problem is available: an enhanced system of mandatory international arbitration achieved through scaling-up ICANN’s existing dispute resolution mechanism, the UDRP.
Brian F. Havel & Gabriel S. Sanchez, The Emerging Lex Aviatica
Since the advent of international commercial air travel, every airline has been straitjacketed by treaty-based restrictions which
mandate that, in order to be eligible to provide international air services on behalf of its home state, it must be owned and controlled by citizens of the home states (or by the home state itself). This citizenship “purity” requirement, commonly referred to as the “nationality rule,” is reinforced by national laws requiring substantial (share) ownership and effective control of national air carriers by the home state or its citizens. The combined effect of these treaty and national law restrictions has been to prevent airlines from merging across borders or from establishing subsidiaries in other states. Consequently, airlines are locked out of transnational capital markets at a time when the global operating environment (including oil price spikes and lingering demand weakness in the wake of the Great Recession) has never been more challenging. In this Article, we identify an emerging normative transition, which we dub the “lex aviatica,” that is attempting to displace the treaty-based nationality rule. This transition is rooted in an evolving consensus among airlines and sympathetic government ofﬁcials. Thus, in contrast to its conceptual antecedent, the “lex mercatoria,” through which the merchant class consciously broke with the common law, the emergent lex aviatica suggests a lawmaking process where not only is the state no longer the sole actor or regulator, but there is an appreciably more open-textured collaboration between merchant and state. The Article analyzes how this normative transition could transform the global regulatory order for international aviation, liberating commercial and investment opportunities that will allow the industry that globalized the world to become global itself.
Grant L. Willis, Security Council Targeted Sanctions, Due Process And The 1267 Ombudsperson
Since its inception, the Security Council’s 1267 sanctions regime has come under ﬁre from U.N. member states, listed individuals and entities, domestic and international courts and tribunals, human rights NGOs, and even other organs of the U.N., that all claim the 1267 sanctions regime does not secure targeted individuals’ procedural due process rights, particularly the right to an effective remedy. For instance, in June 2009 a Canadian Federal Court Judge noted that the 1267 sanctions regime creates a situation for the listed individual that is “not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning, and for reasons never revealed to him or the reader, is arrested and prosecuted for an unspeciﬁed crime.” Now some courts and governments of U.N. member states have decided that they will not comply with the UNSC sanctions regime, which was adopted under Chapter VII, because it does not comply with procedural due process rights of targeted individuals. Such actions threaten to undermine the Security Council’s ability to secure international peace and security through its sanctions power. Thus, this Article raises the question of whether, given the Security Council’s exceptional status in international law, there are any legal bases for a Security Council obligation to ensure that rights of procedural due process are made available to individuals directly targeted with sanctions under Chapter VII of the U.N. Charter. After an in depth discussion of this question, it is contended that the Security Council does have a legal obligation to render the listing and delisting procedures of the 1267 sanctions regime consistent with fundamental norms of procedural due process. Finally, the functions, powers, and independence of 1267 Ombudsperson, which was created by a December 2009 Security Council resolution, is analyzed to determine whether it’s establishment has rectiﬁed the 1267 sanctions regime deﬁciencies.
Jayanth K. Krishnan & C. Raj Kumar, Delay In Process, Denial Of Justice: The Jurisprudence And Empirics Of Speedy Trials In Comparative Perspective
Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India—the world’s largest democracy, an ally of the United States, and a country with a judiciary that draws upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years—and sometimes decades—awaiting their day in court are not uncommon. Many Indian prisons are between 100% and 200% over capacity, where conditions are squalid and the weaker inmates face serious physical harm.
In this study, we examine the current state of the Indian criminal justice system. Beginning in 1979, the Indian Supreme Court, referencing the American Constitution’s Sixth Amendment, held that defendants had a fundamental right to a speedy trial. We examine the evolution of the Indian jurisprudence on this matter, which has been quite favorable for defendants. Then we move beyond this line of inquiry by empirically evaluating whether the positive court rulings have translated into tangible changes for the criminally accused. As our ﬁndings suggest, there exists a major gap in India between these encouraging judicial pronouncements and how the right plays out in reality, which we believe provides an important perspective for comparative and criminal law scholars.
Timothy Bazzle, Pharmacy Of The Developing World: Reconciling Intellectual Property Rights In India With The Right To Health: TRIPS, India's Patent System And Essential Medicines
Since gaining its independence, India has emerged as a leading producer of generic drugs, playing a central role in ensuring that the global poor have access to affordable and efﬁcacious essential medicines. With the ascent of international intellectual property rights, enshrined in the watershed Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), India’s continued ability to develop and manufacture these affordable life-saving medicines has been cast into doubt. Questions abound about whether India will remain the “pharmacy of the developing world” as it conforms its domestic patent regime to the standards established in TRIPS. Recent decisions by Indian courts have given cause for measured optimism. These courts have invoked right to health arguments to validate continued generic drug production, signaling that the growing hegemony of intellectual property rights will not subvert the right to health, at least within India’s domestic patent law framework.
Van Smith, Enabling Environments Or Enabling Discord: Intellectual Property Rights, Public-Private Partnerships, And The Quest For Green Technology Transfer
The transfer of technologies to promote efﬁciency and lower levels of greenhouse gas emissions in economies around the world will be a crucial component of any lasting solution to the global climate change problem. This paper examines two conceptual models for solving the resultant technology transfer challenge. The ﬁrst emphasizes modiﬁcations of intellectual property rights (“IPR”) protections to encourage more efﬁcient technology transfer via private sector innovation. The second relies upon public-private partnerships (“PPPs”) to precipitate private sector research, development, and deployment of beneﬁcial technologies.
The paper concludes that PPPs constitute a more potent technology transfer strategy given current economic and political constraints. First, PPPs can be more rapidly implemented on a broad scale than can IPR solutions. Second, PPPs more comprehensively address non-IPR barriers to technology transfer. Third, PPPs have the potential to aid ongoing multilateral negotiations aimed at producing a comprehensive global climate regime, while IPR solutions are likely to hinder such efforts.
Sean Hennessy, In Re The Foreign Sovereign Immunities Act: How The 9/11 Litigation Shows The Shortcomings Of FSIA As A Tool In The War On Global Terrorism
The spread of global terrorism presents a serious threat to American citizens domestically and around the world. Following the attacks on 9/11, the United States swiftly responded with military action aimed at combating global terrorism. While the military campaign was raging on the battleﬁelds of Iraq and Afghanistan, the victims of 9/11 were taking the ﬁght to terrorists by mounting civil lawsuits against international terrorist organizations such as Al Qaeda, state sponsors of terrorism, and terrorist ﬁnanciers. Litigants brought these suits under a number of statutes, including the Foreign Sovereign Immunities Act (FSIA). This Note explores FSIA as a tool for combating global terrorism by focusing on two FSIA provisions: the terrorism exception and the non-commercial tort exception. This Note examines these two statutory provisions as civil litigation tools against terrorism, explains the challenges litigants encounter when attempting to bring suit under these provisions, and presents proposals to reform both statutory provisions to make them more potent civil litigation tools.
Justin Fraterman, Article 37(2) Of The ILO Constitution: Can An ILO Interpretive Tribunal End The Hegemony Of International Trade Law?
At its November 2008 meeting, the Committee on Legal Issues and International Labour Standards of the International Labour
Organization’s (ILO) Governing Body recommended that the International Labour Ofﬁce prepare a study on improving the interpretation and implementation of international labor agreements and the ILO supervisory mechanism more generally. Amongst the issues the Ofﬁce was asked to consider was the resuscitation of Article 37(2) of the ILO Constitution, a long-dormant provision allowing for the creation of an ‘in-house’ tribunal for the resolution of disputes or questions relating to the interpretation of ILO conventions. As a result, it appears that the ILO may seriously be considering the creation of such a tribunal for the ﬁrst time since 1993.
In the light of this possible innovation in the ILO’s organizational architecture, this paper will explore the parameters and modalities according to which an Article 37(2) tribunal might operate, its possible interaction with the existing ILO supervisory mechanism and its potential role within the larger universe of international law. This essay will situate this possible development within the larger debate on fragmentation and examine the degree to which such a tribunal could serve as a valuable counterweight to the WTO’s dispute settlement system, thereby providing the ILO with an effective response to the hegemony of international trade law. This paper posits that while a new ILO interpretive tribunal would go a long way to clarifying the nature of obligations under international labor law, its likely lack of concrete enforcement power would ultimately prevent it from ensuring compliance with ILO conventions.
N. Jansen Calamita, Countermeasures and Jurisdiction: Between Effectiveness and Fragmentation
The doctrinal role of a lawfully taken countermeasure is to serve as a defense (or circumstance precluding wrongfulness) that justiﬁes the reacting State's suspension of its performance of the international obligation owed to the target State. Countermeasures, however, need not be reciprocal. In response to a violation of Treaty A, for example, States may, and often will, react by taking countermeasures suspending performance of obligations under Treaty B. Where both (or one of) Treaty A and Treaty B contains a provision for the compulsory adjudication of disputes, complicated questions of jurisdiction arise. How, for example, is the plea of a non-reciprocal countermeasures defense to be treated by an adjudicatory body of limited jurisdiction, where the basis of the defense is an alleged wrongful act under a treaty over which that body does not have jurisdiction? Or is based upon a similar violation of customary international law? And if the adjudicatory body determines that it is without jurisdiction to consider the countermeasures defense—and therefore it cannot function as a circumstance precluding wrongfulness—how might that affect the ways in which States formulate their countermeasures in the ﬁrst place?
This article addresses the treatment of non-reciprocal countermeasures by adjudicatory bodies of limited jurisdiction, analyzing the scope of discretion accorded to such bodies in the management of their jurisdiction and the impact that jurisdictional limitations may have on State practice with respect to the formulation and use of countermeasures. The analysis here engages the wider academic debate on the fragmentation of international law, although the issues raised are far from academic. The jurisdictional limits on adjudicatory bodies to consider a defensive plea of non-reciprocal countermeasures has already arisen for decision in the context of investor-State disputes and disputes before the World Trade Organization. There is reason to believe that such issues will continue to arise across the range of ﬁelds covered by international law. It is an important issue and one that is due for attention.
Keith A. Petty, Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory
The decision to prosecute the suspected co-conspirators of the 9/11 terrorist attacks in either federal court or by military tribunal has reached a critical juncture. Central to this debate is whether the military commissions are consistent with domestic and international standards of justice. Utilizing the analytical framework of compliance theory, this article discusses the U.S. reputation for compliance in the context of the revised military commissions.
A decidedly negative reputation of the military commissions contributed to policies to amend the tribunal process, culminating in the Military Commissions Act of 2009. This Act supports empirical ﬁndings that states are pulled toward compliance with legal norms in part out of concern for reputation among transnational actors, such as governments, multi-national institutions, non-governmental organizations, and legal commentators. This article argues for policy-makers to engage in the interpretive, discursive process of normative compliance theory when formalizing national security strategy. Applying this process will minimize the need to engage in post hoc reputation shaping and, more importantly, will facilitate internalization of applicable legal norms in counter-terrorism policy.
Siyuan An & Brian Peck, China's Indigenous Innovation Policy in the Context of its WTO Obligations and Commitments
China's Indigenous Innovation Product Policy ("Indigenous Innovation Policy") is designed to promote the innovation and commercialization of Chinese-origin technology, products and intellectual property assets by providing preferential treatment for Chinese manufactured products over foreign products in government procurement practices. Such preferential treatment has generated signiﬁcant criticism from foreign industries and governments. This article conducts an analysis as to whether the implementing measures of this policy are inconsistent with China's WTO obligations.
Although China currently has no technical obligation under World Trade Organization ("WTO") rules to provide open access to its government procurement market, China's indigenous innovation measures are still subject to its other obligations as a Member. In order to enjoy the beneﬁts provided by WTO Membership, Members are not only obligated to bring their measures into compliance with explicit WTO rules, but also, to ensure that their measures, even if not inconsistent with speciﬁc WTO provisions, are also consistent with the WTO's fundamental principles of free trade and non-discrimination, which are embodied in the WTO rules. The impact of the Indigenous Innovation Policy implicates rules such as the Protocol on the Accession of the People's Republic of China ("Accession Protocol"), the General Agreement on Tariffs and Trade 1994 ("GATT"), the WTO Agreement on Subsidies and Countervailing Measures, and the Agreement on Trade-related Aspects of Intellectual Property Rights.
China's WTO accession commitments as well as its status as both a WTO Member and a signiﬁcant market in the global economy dictate that the indigenous innovation measures may indeed be inconsistent with China's obligations under the WTO. In examining China's Indigenous Innovation Policy under this light, it is important to understand how the implementing measures are developed. This article examines China's unique policy development process, which involves an experimental interaction between the central and local governments, under which local governments implement policies independently from each other.
In implementing China's Indigenous Innovation Policy, this local development process has resulted in problems, such as the lack of predictability and consistency of rules, as well as local protectionism, which may run afoul of China's WTO obligations.
As discussed in this article, foreign industries and governments have raised some valid challenges to China's indigenous innovation measures as being inconsistent with WTO rules. This article examines the viability of those claims in the context of China's WTO obligations, such as the lack of transparency in China's publication of these measures, possible discriminatory treatment of foreign-held intellectual property rights, a non-violation claim under Article XXIII of the GATT, and other possible claims. Finally, based on conclusions drawn from this analysis, this article provides a possible option for moving forward in addressing the concerns of both foreign and Chinese interests.
Mauro Squitieri, The Use of Information in EU Competition Proceedings and the Protection of Individual Rights
Regulation 1/2003 on the implementation of the European Community rules on competition represents an innovative departure, in many respects, from the prior Regulation 17/62. The new legislation assigns a more important role to the National Competition Authorities and national courts of Member States in the implementation of competition rules, as they now share the enforcement and application of European law with the European Commission. More importantly, Regulation 1/2003 entrusts the Commission with broader powers of investigation to facilitate the detection of anticompetitive practices. However, such an extension of powers, with particular reference to those relating to the collection of information needed to carry out proceedings, raises signiﬁcant concerns in relation to the protection of fundamental rights. In this scenario, two different interests emerge: on the one hand, Regulation 1/2003 must ensure that the Commission can effectively monitor companies' compliance with Community competition law; on the other hand, the provisions of the regulation and their implementation by the Commission must not jeopardize the fundamental rights and guarantees enjoyed by natural persons and legal entities on the basis of Community law provisions and principles. The present work analyzes this conﬂicting relationship between the enforcement of competition rules and the safeguarding of fundamental rights of both natural and legal persons, while at the same time investigating how these opposing interests have been addressed by Community authorities. Throughout the paper, the existing legislation, case law and changes to legislation that occurred over the last decade will be considered in order to draw a comprehensive picture of the present situation and to trace trends that might foretell future developments. Particular emphasis will be placed upon a critical analysis of the decisions taken by the European courts and of the choices made by the legislative bodies of the Community. When necessary, potential alternative options for the questions addressed by the European institutions and new possible solutions for relevant and still unresolved problems will be indicated.
Erin Creegan, Cooperation in Foreign Terrorism Prosecutions
There are two basic models for criminal justice systems: the adversarial model, which exists in the United States, and the inquisitorial model, which is more common. This article explains the most important features of the inquisitorial model, and shows how these legal differences can sometimes create an impediment when Americans attempt to assist in foreign terrorism prosecutions. Looking at some common problems: a lack of pre-trial coordination between investigator and prosecutor, multiple retrials, long appeals processes, shorter sentences, and early release; this article explains differences and attempts to ﬁnd collaborative solutions so that other countries can utilize U.S. experiences to successfully disrupt and incapacitate terrorists on their soil.
Aaron Franklin, Developments in Cases Arising Under 28 U.S.C. § 1581(a) During 2009
This commentary reviews notable cases decided during 2009 that arose under § 201 of the Customs Courts Act of 1980, codiﬁed at 28 U.S.C. § 1581(a) ("§ 1581(a)"). This provision grants the United States Court of International Trade ("CIT"), "exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930." These cases involve the CIT's judicial review of the denial of protests by the United States Bureau of Customs and Border Protection("Customs'') regarding ﬁnal decisions by Customs affecting how much importers pay in duties, fees, and exactions, in a given import transaction. This commentary reviews cases decided by both the CIT and its appellate court, the United States Court of Appeals for the Federal Circuit ("Federal Circuit").
Cases that arise under § 1581(a) often lead to fact-intensive, tariff heading-speciﬁc, and merchandise-speciﬁc opinions that provide little guidance in cases involving other merchandise. This commentary, rather than repeating each case's facts, attempts to mine the 2009 cases for valuable indications of how the CIT and the Federal Circuit will resolve legal questions in the future. As such, not every case arising under this part of the court's jurisdiction was included. Rather, each case discussed answered some question that is likely to arise in other contexts.
This commentary proceeds in seven parts. It begins by explaining the legal infrastructure of customs law and how the CIT analyzes these cases. It then focuses on decisions resolving jurisdictional questions. Next, it explores several cases that required interpretation of the court's rules of procedure. The following section discusses how the court construed statutory and regulatory provisions. After that, the next section discusses methods employed by the court to interpret the Harmonized Tariff Schedule of the United States ("HTSUS"). The seventh section includes cases discussing the court's deference to Customs' decisions. The ﬁnal section focuses on how the CIT decided its sole appraisement case.
Thomas Kelly, An Unwise and Unmanageable Anachronism: Why the Time has Come to Eliminate Systematic Inadequacy as a Basis for Nonrecognition of Foreign Judgments
Imagine the following scenario: Today, the president of the tiny but strategically located nation of Confusistan announced that the United States has just two weeks to remove its military forces from Confusistan's territory. Given Confusistan's close proximity to numerous hot-spots in the global war on terror, the announcement comes as a great blow to American military strategy and is all the more shocking considering that just a few weeks ago Confusistan was considered one of America's most stalwart allies. What could have precipitated such a dramatic falling out? The answer leads to an idyllic courthouse in Boise, Idaho.
That is where a local court found Confusistan's judicial system to be riddled with corruption and declared that no Confusistani judgment could possibly be worthy of being recognized or enforced in the United States. The judge made this determination as she was deciding whether to recognize a Confusistani court judgment awarding a Confusistani plaintiff $100,000 in damages against a former American military contractor who was alleged to have negligently crashed his car into the plaintiff's vehicle during a drunken night out on the town. Without questioning any of the Confusistani plaintiff's allegations or indicating that she saw anything suspicious about the particular proceeding that led to the judgment, the judge determined that she could not recognize any judgment coming out of Confusistan on the basis of a State Department human rights report and expert testimony from a legal scholar familiar with the country.
Confusistani politicians were outraged by the judge's indictment of the Confusistani legal system. "We refuse to suffer this indignity,"announced the Confusistani President, "just a few weeks ago the American Secretary of State was here saying that America respects us as an equal, and now we are told that our courts are fundamentally corrupt and our system of jurisprudence is uncivilized. That is no way to treat a partner." Meanwhile, back in Boise, the judge pleaded that she had not intended to create an international incident. Rather, she was merely following her duty to faithfully execute Idaho state law governing the recognition of foreign judgments.
The above scenario may seem unlikely, but the idea of an American judge impugning a foreign judicial system in her ofﬁcial capacity is far from ridiculous. In fact, sweeping generalizations about the judicial systems of foreign nations are not just allowed under current U.S. law, they are required. That is because the law governing enforcement of judgments forbids recognition of foreign judgments "rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law."
This test for systemic inadequacy means that before U.S. courts can evaluate the speciﬁc procedure that led to a foreign judgment, they must ﬁrst engage in an amorphous inquiry into whether the foreign judicial system as a whole is worthy of having its judgments recognized. This Note posits that the use of systemic inadequacy as a basis for nonrecognition is unwise in theory and impossible to apply in practice. Part I provides an overview of the development of the systemic inadequacy test and describes how courts have applied the test in the relatively few, but increasing, situations where it has been employed. Part II argues that the systemic inadequacy test is impossible to apply because U.S. courts are simply not equipped to comprehensively evaluate the adequacy of foreign judicial systems. Part III argues that even if faithful application of the systemic inadequacy test were possible, the test is unwise because it entails signiﬁcant costs without providing commensurate beneﬁts. Finally, recognizing that the complete elimination of systemic inadequacy as a basis for nonrecognition through legislation might prove politically unfeasible, the Conclusion offers several extra-statutory tactics for diminishing the use of the systemic inadequacy test.
Charles Benoit, Picking Tariff Winners: Non-Product Related PPMS and DSB Interpretations of "Unconditionally" Within Article I:1
This paper proposes how WTO Members seeking a proportional increase in the consumption of "sustainable" ethanol could defend a unilaterally introduced tariff advantage for ethanol conditioned on green house gas emission life-cycle assessments. This explanation applies a WTO-contextual taxonomy of non-product-related process and production methods to argue that life-cycle assessments should not be interpreted as a prohibited PPM, and in fact are supported by the text of the WTO Preamble and the WTO Dispute Settlement Body's ﬂexible interpretations of "unconditionally." The purpose of the paper is to advance an emerging view of GATT Article I:1's most-favored-nation principle, and as such there is no reliance on derogations of the MFN principle found in the GATT Article XX exceptions or the Enabling Clause.
Riley J. Graebner, Dialog and Divergence: The Vienna Convention on Consular Relations in German, American, and International Courts
For a decade the United States' Supreme Court, the German Federal Constitutional Court, and the International Court of Justice struggled with whether the failure to inform foreign nationals accused of a crime of their right to consular aid was a violation of international law. The courts talked down to, past, and over each other but consistently failed to engage in meaningful judicial dialogue on the role of international law in domestic courts. The paper looks at how faced with seemingly similar factual situations, the Federal Constitutional Court and the Supreme Court came to opposite legal conclusions. An exploration into the source of this divergence demonstrates that it derives less from legal framework and more from deeper socio-cultural elements. The search for what makes these cases fundamentally different reveals not just a different way of seeing one particular treaty, but two contrary conceptualizations of the role of international law and international legal bodies in an increasingly globalized legal world.
Judge Evan J. Wallach, Foreword
Kimberly R. Young & Frederick P. Waite, Overview of 2009 Decisions by the U.S. Court of International Trade in Appeals of Determinations of the U.S. International Trade Commission
When the U.S. International Trade Commission ("ITC" or "Commission") makes a determination in an antidumping or countervailing duty ("AD/CVD") proceeding or in a five-year sunset review of an AD/CVD order, interested parties may appeal that determination to the U.S. Court of International Trade ("CIT" or "court"), which has jurisdiction to review such determinations pursuant to 28 U.S.C. § 1581(c). This article provides an overview of the decisions issued in 2009 by the CIT in appeals of determinations by the Commission. During 2009, the CIT issued several decisions reinforcing the deferential standard of review—the substantial evidence standard—that is applied by the court in appeals of ITC determinations. In addition, the CIT decided two cases in 2009 that were marked by highly unusual events—first, a remand determination in which the Commission reversed its original negative determination and second, a trade decision issued by the U.S. Supreme Court in United States v. Eurodif SA. But the most significant and far-reaching issues raised by the CIT's decisions in 2009 were the unresolved split in the court on the applicability of Bratsk in sunset reviews; the undecided question about the applicability of Bratsk in threat cases; and the question raised by two mandamus petitions—whether filing an appeal to the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit" or "CAFC") suspends the legal consequences of a CIT decision. These issues will likely have to wait for resolution by the Federal Circuit.
Marguerite Trossevin & Reza Karamloo, Judicial Review of Antidumping and Countervailing Duty Determinations by the Department of Commerce: Noteworthy Cases in 2009
Last year the Court of International Trade (the "Court" or the "CIT") was called upon to address the ramifications of the first Supreme Court decision in decades to arise out of the antidumping ("AD") or countervailing duty ("CVD") laws. If that was not enough excitement for one year, the Court was also drawn into the controversy surrounding the Department of Commerce's ("Commerce") application of the CVD law to China, reversing the agency's longstanding position that the CVD law does not apply to non-market economies ("NME"). Because the Court's decision on Commerce's application of the CVD law to China is one of the most important and interesting cases of 2009, this article will begin there. In addition to this landmark case, however, the Court rendered decisions on a host of other issues, both substantive and procedural. This article discusses a number of those cases on a variety of important topics, including the use of adverse facts available, selection of surrogate values in AD NME cases, scope, jurisdiction and judicial process and, finally, administrative process.
Michele D. Lynch, Nasim A. Deylami, Nathaniel J. Halvorson, Skye Mathieson, & Kelsey M. Rule, 28 U.S.C. § 1581(C): Judicial Review of Antidumping and Countervailing Duty Determinations Issued by the Department of Commerce
In 2009, the United States Court of International Trade ("CIT") issued 152 slip opinions, many of which involved the court's jurisdictional grant under 28 U.S.C. § 1581(c). Title 28 of the United States Code § 1581(c) vests the court with jurisdiction to review civil actions arising pursuant to section 516A of the Tariff Act of 1930, i.e., actions challenging determinations made by the U.S. Department of Commerce ("Commerce") administering the unfair trade laws. Individually, each of the 152 cases is important to its litigants, but for purposes of this article the authors have addressed those antidumping cases that may or should be significant to the trade bar, generally.
The article is structured so that it addresses substantive antidumping issues first before surveying calculation and procedural issues. We begin with a brief discussion of zeroing, an issue that has been addressed in prior years by both the CIT and the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit"), but notwithstanding the settled law on this issue, in 2009 parties continued to challenge the methodology alleging that it was not permitted by the statute. Ironically, parties also challenged Commerce's decision not to zero in certain investigations on the same basis, i.e., that such action similarly was precluded by the statute. As discussed below, the CIT recognized that Commerce properly had exercised its discretion in both types of cases. Another hotly contested substantive issue in 2009 was Commerce's application of adverse facts available ("AFA") when responding parties failed to cooperate to the best of their ability in the underlying administrative proceeding. AFA certainly is not a new issue before the court, yet its parameters continue to be explored by the court, the agency, and the parties. The court's response to Commerce's selection of mandatory respondents was another important area that the CIT addressed in 2009, as was selecting the date of sale and Commerce's model-matching criteria. Finally, we address opinions that examined certain calculation and procedural issues including constructed export price ("CEP") offset, CEP profit, duty drawback, selection of surrogate countries for purposes of Selling, General and Administrative ("SG&A") expense ratios, calculation of the SG&A ratio, the importance of deadlines for submission of information to the agency, and revocation.
Thomas J. Trendl, Jamie B. Beaber, Michael T. Gershberg, Laura Ardito, & Christopher Falcone, Commentary on Developments in Section 1581(C) NME Cases
The Court of International Trade ("CIT") issued 19 decisions regarding non-market economy ("NME") antidumping cases during 2009. These decisions covered a wide range of issues. While many of them were very fact-specific to the administrative proceeding below, several have broader applicability and stand out as worthy of notice and commentary. This article focuses on the CIT's decisions addressing the following issues: choice of surrogate country, respondent selection, separate rates, surrogate values, adverse facts available, and affiliation.
This article does not attempt to provide a comprehensive overview of antidumping law and practice nor does it attempt to explain the intricacies of antidumping margin calculations or the NME methodologies utilized therein. Nevertheless, following is a basic description of the issues addressed by this article. In an NME administrative proceeding, the Department does not calculate a comparison market price utilizing home-market or third country sales nor does it utilize the cost of manufacture as incurred by the respondent company at issue—as the Department would in a market economy proceeding. Rather, the Department looks to a surrogate (market) country in which to value the inputs used by the NME respondent but does utilize the quantity of the actual inputs consumed by the particular investigated NME company. These "surrogate values" are necessary for every input used to manufacture the subject merchandise, including raw materials, labor, overhead, utilities, profit, etc. As such, selection of the surrogate country and the associated surrogate values for the specific inputs used to manufacture the merchandise involved can have a significant impact on the outcome of the proceeding.
The process by which specific companies are identified as mandatory respondents in a proceeding requiring them to participate in the Department's investigation is also a fundamental and threshold issue in every NME antidumping investigation and administrative review. Antidumping investigations and administrative reviews involving China can involve hundreds of potential respondents. The Department, constrained by personnel and budgetary limitations, does not have the ability to investigate every company involved. Accordingly, the Department will select a relatively small number of companies (usually the largest based on import volumes) to be "mandatory respondents," while other participating companies will be "separate rate companies."
The mandatory respondents will receive their own, company-specific dumping margin. The separate rate companies will receive a weighted average margin of the mandatory respondents' rates, provided they can establish their eligibility for a separate rate. Companies which do not participate or fail to adequately participate in the proceeding (as discussed below) are given margins which can be based on "facts otherwise available" and, in some instances, with "adverse inferences" applied. All other companies receive a China wide rate, which is the weighted-average margin of all respondents.
As discussed in detail below, the Court dealt with these fundamental issues as well as other concepts in a number of NME cases decided in 2009, though providing varying levels of clarity in its decisions.
Franklin E. White, Jr., & Justin David Blanset, Developments During 2009 Concerning 28 U.S.C. § 1581(D) and (G) and 28 U.S.C. § 1582(1)
In 2009, the United States Court of International Trade ("CIT") decided eight cases brought pursuant to 28 U.S.C. § 1581(d), relating to the respective trade adjustment assistance ("TAA") programs administered by the Department of Labor ("Labor") and the Department of Agriculture ("USDA"). With one exception, none of the cases addressed disputed jurisdictional issues relating to the scope of § 1581(d). Instead, in these cases, the court addressed substantive factual and legal issues in resolving the cases upon the merits. Taken as a whole, there was an interesting distinction between the court's focus in deciding the cases involving the Department of Labor and its focus in deciding cases involving the Department of Agriculture. Regarding the six cases involving Labor's TAA decisions, the cases largely turned upon questions of substantial evidence and Labor's procedures as applied to the unique facts of individual cases. Legal holdings of broad applicability were rare. Many of the cases reviewed involved multiple remands and, in many instances, the thoroughness of Labor's investigations were criticized by the court—even in cases that were ultimately decided in favor of the Government. In contrast, both of the USDA TAA cases turned not upon the facts, but upon the resolution of a discrete legal issue regarding the determination of "net farm income" for the purposes of establishing the statutory eligibility requirements for agricultural TAA. The way this issue was resolved in these cases appeared to create a conflict (although only one of the CIT decisions was published), however, in a very recent precedential decision that affirmed the CIT's decision in one of the two cases, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") largely resolved that conflict.
Historically, the CIT has decided a relatively small number of cases brought pursuant to 28 U.S.C. § 1581(g). In the single 2009 case that involved that jurisdictional provision, the court, in dismissing an aggrieved applicant's challenge to a question on the customs broker license examination, reaffirmed prior precedent regarding the limited and highly deferential review of examination questions, while at the same time demonstrating that this standard of review will nonetheless still involve a careful consideration of asserted ambiguities and other deficiencies in the exam.
Finally, the court's decisions in three customs enforcement cases filed by the United States, pursuant to 28 U.S.C. § 1582, were notable in that the decisions did not turn upon jurisdictional issues or issues of substantive customs law, but rather upon basic issues of civil procedure, such as extensions of time for making service of process under Rule 4(l) of the Rules of the United States Court of International Trade ("USCIT R."), motions for voluntary dismissal pursuant to USCIT R. 41(a)(2), and adequacy of pleading under USCIT R. 8. Although two of these § 1582 cases resulted in published decisions, it is unlikely that they significantly contributed to the development of the law.
As suggested by the title, the larger organizational structure of this Article follows from the particular statutory provisions upon which the CIT asserted jurisdiction in the cases discussed in the Article. Part I covers TAA cases decided by the CIT pursuant to its § 1581(d) jurisdiction. Subpart I-A provides a short general overview of the TAA programs administered by Labor and the 2009 developments in the law relating to Labor TAA, followed by individual summaries of the 2009 Labor TAA cases. Subpart I-B is organized in the same manner as subpart I-A, but relates to the TAA program administered by the USDA. Part II provides a short overview of the CIT's § 1581(g) jurisdiction as it relates to cases involving the customs broker license examination, followed by a summary of the sole 2009 case decided pursuant to this jurisdictional provision. Part III provides a short overview of 2009 developments relating to cases filed by the Government pursuant to § 1582, followed by individual case summaries.
Michael J. Coursey, Developments During 2009 Concerning the U.S. Court of International Trade's "Residual" Jurisdiction Under 28 U.S.C. § 1581(I)
Thirty years ago, Congress passed the Customs Court Act of 1980 ("CCA"), creating the U.S. Court of International Trade ("CIT") as the successor to the U.S. Customs Court and granting it original "residual" subject matter jurisdiction. The grant of a significant original residual jurisdiction to the CIT, codified at 28 U.S.C. § 1581(i), was a major part of Congress' effort in the CCA to endow the CIT and its judges with the same status and authority as the federal district courts and their judges, and to provide the CIT with clearly-defined original jurisdiction over appeals arising from a much broader range of customs and international trade laws than had been exercised by the Customs Court. Congress intended through the CCA that all appeals arising from such laws—including those covered by the new residual jurisdiction— would be heard by CIT judges, who would have significant expertise in customs and international trade matters, and not the over-burdened federal district courts.
Part I of this survey compares subsection (i) to its eight companion subsections of § 1581. Part II reviews the CIT's 2009 decisions that address the traditional jurisdictional requirements and limitations of its exercise of residual jurisdiction under subsection (i). These decisions can be described as "gatekeeper" decisions because they analyze the fundamental question of whether the CIT would have subject matter jurisdiction under § 1581(i) under a specific appeal, surviving what typically would be a motion by the government to dismiss the appeal under CIT Rule 12(b)(1) for lack of subject matter jurisdiction because the claims made therein: (1) do not "arise out of" any law within the general categories of laws listed in subsection (i) (see Part II.A, infra); (2) could have been made under one of the eight subsections that precede subsection (i) (see Part II.B.1 and 2); or (3) are not eligible for the "manifestly inadequate" exception to (2) (see Part II.B.3, infra).
Part III discusses the 2009 decisions by which the CIT continued to clarify (1) the additional jurisdictional requirements placed by the Administrative Procedures Act ("APA") on all (or virtually all) appeals over which the court has residual jurisdiction under § 1581(i); and (2) the requirements and limitations of the APA's "residual" cause of action for such appeals. This discussion shows that, given the dearth of past decisions addressing the APA cause of action in § 1581(i) appeals, these decisions borrowed heavily from Supreme Court precedent applying the APA residual cause of action to challenges of the government's alleged laxity in enforcing environmental-protection, food-and-drug safety, and other laws not covered by § 1581(i).
David Damast, Export Control Reform and the Space Industry
In his first State of the Union address, President Obama announced an ambitious goal: to double American exports in five years. The Administration has made reforming export controls a chief tool in achieving that goal, in the belief that our export licensing policies have excessively limited our ability to sell the very high technology goods in which America has the greatest advantage. Various proposals for reform have emerged in Congress and in the executive agencies, most notably H.R. 2410, which has passed the House and currently awaits action in the Senate. While in many respects an improvement on the status quo, the House bill fails to achieve one of its major objectives: simplifying and rationalizing the export control regime governing space-qualified products.
This note examines the impact of H.R. 2410 on the space industry and considers how the bill might be changed to better achieve its goals. The first part of the note explains the current export control regime governing satellites, launch vehicles, and space-qualified components, and the effects these controls have had on the space industry. The second part examines current efforts at reform by both the Administration and Congress, including H.R. 2410 and its intended effects. The third considers areas in which the House bill falls short and weighs alternatives which might better accomplish the Administration's goals.