In 2011, the Knights Templar rose to be one of the strongest cartels in Mexico. Situated in Michoacán, one of Mexico’s western states, the Knights Templar maintained its power thanks to strongman Servando Gomez. Gomez, known as “La Tuta,” was the nation’s most wanted cartel leader until his arrest last month. Federal police arrested Gomez and paraded him around Mexico City in an attempt to demonstrate the government’s strength and control over the states. The cameras and journalists, however, only showed one side of the story. In Michoacán, vigilante groups, the self-proclaimed fuerzas autodefensas (self-defense forces), collaborated with federal and local police to fight the cartels and capture their leaders. Now, in the aftermath of La Tuta’s capture, Mexico must solve the dilemma of integrating these vigilante groups productively into preexisting governmental institutions or face a challenge to its authority.
The fuerzas autodefensas challenge the government’s authority in two ways. Primarily, the fuerzas unregulated use of arms challenges Article 10 of the Mexican Constitution. According to Article 10, citizens have the right to keep arms within their homes for protection and defense against an aggressor. Unregulated gun use has tipped the scales of power in Mexico, leaving weak and corrupted police forces both underpowered and undermanned. As a result, local communities rely on extralegal assistance like the self-defense groups to defend themselves. Secondarily, the self-defense groups do not conform to traditional government oversight. As a consequence, Mexico has given the vigilantes power to take justice into their own hands without out any true oversight. More importantly, it demonstrates Mexico’s inability to protect its authority and control the cohesion of its union.
The issue of unregulated guns in Mexico is a common one. The cartels’ use of guns in violation of Article 10 reaffirms this. Self-defense groups have also rejected attempts by the federal government to disarm them. Jose Manuel Mireles, a leader of one of Michoacán’s larger self-defense groups, has said, "If they disarm us, the Knights Templar will come and kill us.” While Mireles’ group may appear well intentioned, self-defense groups’ possession of arms provides the groups with protection and firepower against other groups. Recent gunfights between vigilante groups in Michoacán have resulted in blood feuds. Should further clashes between the fuerzas continue, there is little indication that the cartels’ destruction will create peace.
The issue of regulation and oversight is equally perplexing. In the last year, after several successful battles against the cartels, Mexico legalized vigilante groups in Michoacán as a form of “grass roots security” called the Rural Defense Corps. This new semi-regulated organization is designed to incorporate the fuerzas autodefensas into the local and federal police. However, the union has proven unstable. Self-defense groups have begun to react against both the cartels and the state. In December 2014, groups dismantled roadblocks in Apatzingan in protest of President Peña Nieto’s handling of the cartels. As previously mentioned, groups have also refused to give up arms. The central government’s inability to rein the vigilantes in delegitimizes their overall control and authority. Should Mexico fail to find an agreeable way to protect its citizens and stop the rural militias, the country may become entrenched in civil war.
In conclusion, Mexico must address the overall issues of unregulated guns within its state and find a way to either incorporate the fuerza autodefensas into its police and military systems, or disband them. Failure to do so undermines the nation’s laws and cohesion. With the capture of La Tuta, many hope for peace, but that peace relies on collaboration among the people, the states, and the central government.
 BBC News, Mexico President Hails Capture of Drug Lord Servando ‘La Tuta’ Gomez, February 28, 2015, http://www.bbc.com/news/world-latin-america-31664192
 Foreign Affairs, Frontier Justice: How to Manage Mexico’s Self-Defense Forces, March 11, 2014, http://www.foreignaffairs.com/articles/141022/patricio-asfura-heim-and-ralph-h-espach/frontier-justice
 Political Database of the Americas, Constitución Federal de 1917 con reformas hasta 2010, http://pdba.georgetown.edu/Constitutions/Mexico/vigente.html
 Foreign Affairs, The Rise of Mexico’s Self-Defense Forces, Vigilante Justice South of the Border, July/August 2013, http://www.foreignaffairs.com/articles/139462/patricio-asfura-heim-and-ralph-h-espach/the-rise-of-mexicos-self-defense-forces
 BBC News, Mexican Vigilantes Protest Against Plans to Disarm Them, April 7, 2014, http://www.bbc.com/news/world-latin-america-26918961
 See, Vice News, Mexico Releases Michoacán Vigilante Leader Involved in Fatal Gun Fight with Rival Militia, March 10, 2015, https://news.vice.com/article/mexico-releases-michoacan-vigilante-leader-involved-in-fatal-gun-fight-with-rival-militia
 Vice News, Mexico Releases Michoacán Vigilante Leader Involved in Fatal Gun Fight with Rival Militia
 Foreign Affairs, Frontier Justice
 International Business Times, Mexico’s Vigilantes Resurface, Faulting Government for Failing to Take Down Knights Templar Cartel, December 15, 2014, http://www.ibtimes.com/mexicos-vigilantes-resurface-faulting-government-failing-take-down-knights-templar-1758088
Due to advances in technology that allow for gestational surrogacy and greater acceptance in public opinion, global surrogacy has achieved an unprecedented popularity. Consequently, medical tourism, where consumers of health care travel around the world to receive cheaper medical care, now includes reproductive tourism. Despite many countries’ prohibitions or restrictions on surrogacy arrangements, the market for international surrogacy has grown greatly, and international, or global, surrogacy is a booming business.
The responses by scholars to international surrogacy vary widely. Some advocate for minimal governmental regulation because of fears of paternalistic limitation on a competent woman’s choice to become a surrogate, and some voice concerns that a ban could create a black market in surrogacy with even fewer protections for the parties involved. However, other commentators compare this to slavery or prostitution.
Recently, Thailand passed a law to outlaw the use of Thai surrogates by foreign couples. The law stipulates that foreigners will be prohibited from using Thai surrogates unless they have been married to a Thai national for at least three years, and a violation of the law carries a prison sentence of up to ten years with agents for surrogate mothers also facing lengthy prison sentences. The law also stipulates that surrogate mother must be over 25. This was in response to several surrogacy scandals that occurred in Thailand in the past year, and the “rent-a-womb” industry that has made the Southeast Asian country a top destination for fertility tourism. Although Thailand wishes to curb the “renting” of wombs by foreigners, critics say that making commercial surrogacy illegal could push the industry underground, making it harder for patients to access quality physicians and medical care. However, some are skeptical that the legislation will be implemented.
There are many ethical concerns that surround international commercial surrogacy, and, as the international surrogacy industry will continue to grow, regulators and scholars need to be prepared with thoughtful, nuanced responses.
 Gestational surrogacy allows for scientists to create an embryo with an egg and sperm from the intended parents (or from donor eggs and sperm) through in vitro fertilization (IVF) procedure and then transfer it into the uterus of a genetically unrelated surrogate. This is in contrast to the traditional non-gestational surrogacy where the surrogate becomes pregnant through artificial insemination by sperm from the intended father or sperm donor and her own egg, and the surrogate is genetically related to the child. After a series of case law where traditional surrogates decided they wished to raise the infant they carried, the absence of a genetic tie has made gestational surrogacy vastly more popular than traditional surrogacy. Mohapatra, Seema, Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy, 30 Berkeley J. Int’l L. 412, 413 (2012).
 Id. at 437.
 Xavier Symons, Thailand outlaws foreign surrogacy, BioEdge: bioethics news from around the world, Feb. 28, 2015, http://www.bioedge.org/index.php/bioethics/bioethics_article/11342.
 Thailand bans surrogacy for foreigners in bid to end rent-a-womb tourism, the straits times, Feb. 20, 2015, http://www.straitstimes.com/news/asia/south-east-asia/story/thailand-bans-surrogacy-foreigners-bid-end-rent-womb-tourism-2015022.
 Supra Note 8; Supra Note 10
 Supra Note 8
 Supra Note 1 at 450.
Russia lost an estimated $120 billion due to international sanctions in 2014. This is half of their budget. Perhaps even worse with the oil crisis, Russia is effectively barred from international finance. With these factors combined, Russia’s GDP will likely decrease by 10% in 2015. Although Russia would have suffered from the oil prices regardless of its conduct in the Ukraine, the sanctions give great aggravation. Why would a state incur such cost for a quasi—war for little and uncertain gain?
In the ninth century of the Common Era, Swedish Vikings settled in modern Ukraine. They were called the Rus. Their leader was Rurik, the ancestor of the Tsars. His great grandson, Vladimir the Great—President Putin’s namesake, Christianized the Rus in 1043. Some of the Rus migrated north after the Mongols destroyed their capital, Kiev in 1240. Moscow only gained prominence later as the Muscovite state shrewdly collaborated with the Mongols before betraying them, a process that consumed centuries. Meanwhile, the Grand Duchy of Lithuania and then the Kingdom of Poland—Lithuania controlled much of Kievan Rus from the mid-1300s until Muscovy began to gradually conquer or recover modern Ukraine starting in the mid-1600s.
Russia’s relationship with the Ukraine has been compared to that of the United States and the United Kingdom. After the collapse of the Soviet Union, Russia was in need of an identity to replace the Soviet ideology. Russian nationalism was an obvious choice. The Russian Orthodox Church also experienced a revival perhaps best known through the recent “Pussy Riot” incident. Although there are many factors and explanations for the Ukraine conflict, it was only natural that these forces would be expressed in relation to the homeland of the Rus and the Church. For most of their adherents, Russia began in the Ukraine.
 Laurence Norman, Eu Projects Impact of Sanctions on Russian Economy, The Wall Street Journal (Oct. 29, 2014), http://www.wsj.com/articles/eu-projects-impact-of-sanctions-on-russian-economy-1414583901.
 Tim Worstall, Russia has to Slash Military Spending To Balance the Budget, Forbes (Dec. 30, 2014), http://www.forbes.com/sites/timworstall/2014/12/30/russia-has-to-slash-military-spending-to-balance-the-budget/; XE Currency Converter, http://www.xe.com/currencyconverter/convert/?Amount=13.96&From=RUB&To=USD.
 Greg Satell, Here’s How Obama’s Russia Sanctions Will Destroy Vladimir Putin, Forbes (Apr. 28, 2014), http://www.forbes.com/sites/gregsatell/2014/04/28/heres-how-obamas-sanctions-will-destroy-vladimir-putin/.
 Priyanka Boghani, What’s Been the Effect of Western Sanctions on Russia, PBS (Jan. 13, 2015), http://www.pbs.org/wgbh/pages/frontline/foreign-affairs-defense/putins-way/whats-been-the-effect-of-western-sanctions-on-russia/.
 Anders Aslund, Russia is in No Economic Shape to Fight a War, The Moscow Times (Apr. 22, 2014), http://www.themoscowtimes.com/opinion/article/russia-is-in-no-economic-shape-to-fight-a-war/498728.html; Alexander Motyl, Could Russia Occupy Ukraine?, World Affairs Journal (Apr. 7, 2014), http://www.worldaffairsjournal.org/blog/alexander-j-motyl/could-russia-occupy-ukraine
 Philip Parker, Visual Reference Guides World History 194 (2010).
 Thomas J. Craughwell, How the Barbarian Invasions Shaped the Modern World 236 (2008)
 Igor, Encyclopedia Britannica (2015), http://www.britannica.com/EBchecked/topic/282383/Igor; Craughwell, supra note 7, at 236; Parker, supra note 6, at 194.
 This point has been contested for centuries as part of the debate over whether the Rus were more Germanic or Slavic—symbolic of Russia’s historic division between the Europhilic and Slavophilic factions. Serhii Plokhy, The Origins of the Slavic Nations: Premodern Identies in Russia, Ukraine, and Belarus 10 (2010); Kyivan Rus’, Internet Encyclopedia of Ukraine (2001), http://www.encyclopediaofukraine.com/display.asp?linkpath=pages\K\Y\KyivanRushDA.htm
 W. Bruce Lincoln, The Romanovs 6-7 (1981).
 Kiev, Encyclopedia Britannica (Apr. 8, 2013), http://www.britannica.com/EBchecked/topic/317542/Kiev/13910/The-first-Rus-capital; Andrew Jotischky & Caroline Hull, The Penguin Historical Atlas of the Medieval World 93 (2005). Patrick O’Brien, Atlas of World History 149 (2nd 2010).
 Krishnadev Calamur, Why Ukraine is Such a Big Deal for Russia, NPR (Feb. 21, 2014), http://www.npr.org/blogs/parallels/2014/02/21/280684831/why-ukraine-is-such-a-big-deal-for-russia
 Henry E. Hale, Russian Nationalism and the Logic of the Kremlin’s Actions on Ukraine, The Guardian (Aug. 29, 2014), http://www.theguardian.com/world/2014/aug/29/russian-nationalism-kremlin-actions-ukraine;Marc Bennetts, Why Nothing will Dent Vladimir Putin’s Soaring Popularity at Home, The Guardian (Jul. 31, 2014), http://www.theguardian.com/commentisfree/2014/jul/31/vladimir-putin-western-sanctions-russia-flight-mh17-state-propaganda.
 Mark Tooley, Understanding a More Religious and Assertive Russia, Patheos (Apr. 2, 2014), http://www.patheos.com/blogs/philosophicalfragments/2014/04/02/understanding-a-more-religious-and-assertive-russia/; Tom Esslemont, Russian Orthodox Church Defiant over Pussy Riot Trial, BBC (Aug. 10, 2012), http://www.bbc.com/news/world-europe-19207439.
As of February 25, 2015, Austria passed a reform to their country’s 1912 Islam Law. The original 1912 version made Islam an official religion of Austria and guaranteed Muslims “wide-ranging rights, including religious education in state schools.” While most agreed that updates were necessary, Muslim leaders have said that the specific reforms enacted treat the Muslim population unequally. Though the reforms include protections for Islamic holidays and training for imams, they also ban foreign funding for mosques and imams—but not for Jewish and Christian faiths. The Austrian Integration Minister, Sebastian Kurz, stated that one of the goals of the new law is to have an “Austrian form of Islam.” Though Kurz has claimed that the bill is not a reaction to recent Islamic extremist attacks elsewhere in Europe, he has said “With other religions, there is not the challenge that we have to fear influences from abroad and therefore have to be stricter with financing.”
Despite the Integration Minister’s claims, it is difficult to believe that these inherently unequal reforms have nothing to do with the actions of Islamic extremists. If the purpose of this new law is to prevent their citizens’ religion from being influenced by outside forces, it is illogical to apply these restrictions exclusively to the Islamic faith. It is fundamentally unfair to demand one official state religion be exclusively Austrian while allowing other religions to continue to practice as a global religion.
 Austria Passes Controversial Reforms to 1912 Islam Law, BBC News (Feb. 25, 2015), http://m.bbc.com/news/world-europe-31629543.
 Bethany Bell, Austria’s Muslims Fear Changes to Historic Islam Law, BBC News (Nov. 4, 2014), http://m.bbc.com/news/world-europe-29814688.
 Austria Passes Controversial Reforms, supra note 1; Bell, supra note 2.
 Austria Passes Controversial Reforms, supra note 1.
 Bell, supra note 2.
 Austria Passes Controversial Reforms, supra note 1; Bell, supra note 2.
As fundamentalism and extremism rears its ugly head, our communities are subject to greater danger. Instead of expressing their opinions peacefully via a civic debate, these radical groups subject innocent people to the worst forms of terror. One of those forms involves attacks on cultural treasures and historical sites. This month, militants stormed into the Bardo Museum, killing 21 tourists and one local Tunisian. The museum is famous for housing one of the most impressive collections of Roman mosaics. In response to the attack, thousands of Tunis demonstrators chanted “Tunisia is free! Terrorism out!” The Tunisian President remarked that the people of Tunisia remain opposed to gross forms of violence and that “the whole nation stands as one.”
The destruction of cultural artifacts in countries like Iraq, left thousands of people feeling something they might not have anticipated –pain. It is not as if destroying sculptures or torching paintings is worse than the killing of innocent lives. Admittedly, extremist violence against people is far worse. However, that does not mean that the destruction of cultural heritage is insignificant.
UNESCO launched the Unite4Heritage campaign which “builds support for the protection of heritage in areas where it is threatened by extremists.” The campaign recognizes several legally binding instruments protecting culture, “the Convention for the Protection of Cultural Property in the event of armed conflict, the Convention against Illicit Trafficking of Cultural Property, and the World Heritage Convention.” We should also recognize the International Covenant on Economic, Social, and Cultural Rights. Article 15 observes that member states “recognize the right of everyone [to] take part in cultural life; to enjoy the benefits of scientific progress and its applications; to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The first provision is the most relevant for our discussion.
Per Article 15, states have an obligation to defend our intimate relationship with artists from attempts to erase our cultural forums. According to the Committee on Economic, Social, and Cultural Rights (CESCR), under the obligation to protect cultural life, states must protect culture from third-parties, such as extremists.  When extremists destroy our cultural resources they effectively eliminate our right to participate in cultural life. As the CESCR noted, “The full promotion of and respect for cultural rights is essential for the maintenance of human dignity and positive social interaction between individuals and communities in a diverse and multicultural world.” 
Places, such as museums, theaters, and galleries are critical to the development of our communities and our individual selves. These are places where love and friendship flourish in the pursuit of knowledge. Irina Bokova, Director-General of UNESCO, remarked “Cultural sites have universal value –they belong to all and must be protected by all. We are not just talking about stones and buildings. We are talking about values, identities and belonging.” As a dancer, my cultural expression is intrinsically linked to the common soul of those observing. In essence, while performing, I give a part of myself to my audience and, in turn, my audience gives a part of themselves to me. This is why cultural destruction causes so much grievance. All forms of cultural expression breathe passion into our communities and, in response, we exhale a sense of understanding, love, and greater awareness of life. When art is violently desecrated, our values are grossly violated. When artists are silenced, we lose our voice. It is not just that cultural artifacts and historical sites are windows to our past, rather, they foster an intimate nexus among differing societies in the present. Article 15 of the ICESCR, not only recognizes this, but also, compels states to defend our creative consciousness.
I ask everyone to support the Unite4Heritage campaign, and I ask all artists to keep Performing, Sculpting, Painting, Singing, and Expressing!
 BBC, Tunis Bardo Museum Attach: Thousands Join Protest March, (Mar. 29, 2015) http://www.bbc.com/news/world-africa-32105232.
 Mary Beth Sheridan, Tunisia’s Bardo Museum, Attacked by Terrorists, is Home to Amazing Roman Treasures, (Mar. 18, 2015). http://www.washingtonpost.com/blogs/worldviews/wp/2015/03/18/tunisias-bardo-museum-attacked-by-terrorists-is-home-to-amazing-roman-treasures/.
 BBC, supra note 1.
 UNESCO, Unite4Heritage, http://www.unite4heritage.org/ (last visited Mar. 29, 2015).
 International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A (XXI), U.N.GAOR, 21 Sess. Supp. No. 16, U.N. Doc. A/6316, at 50-51 (Dec. 16, 1966).
 Comm. on Economic, Social and Cultural Rights, General Comment 21 Right of Everyone to Take Part in Cultural Life, Rep. on its 43rd Sess., Nov. 2-20, 2009, U.N. Doc. E/C.12/GC/21 (Dec. 21, 2009).
 UNESCO, supra note 4.
We may have lost the battle but we have not lost the war. This adage seems to resonate with secessionists worldwide. One would assume that Scotland’s decision to remain under the territorial sovereignty of the UK would demobilize secessionists elsewhere. Yet, the people of Catalonia remain as invigorated as ever. Catalonia’s President Artur Mas has signed a decree calling for a referendum on independence. The BBC reports, “Catalonia, which includes Barcelona, is one of Spain's richest and most highly industrialized regions, and also one of the most independent-minded.” The desire to secede raises important concerns for international law.
First, what right do people have to secede?
People have a right to self-determination. Yet, what this right entails and where its boundaries lie has been so fiercely debated by jurists that most international practitioners stay clear of answering this tough question. Under certain conditions, it is likely that “the people” may democratically vote for secession. However, this determination raises an important second question.
Who may vote for secession?
The people could refer to the people of Catalonia or the people of Spain. The LA Times reports, “The Spanish Constitution says that the country is indivisible, that referendums can be called only by the central government and that such measures must be voted upon by all Spaniards, not just one region.” Spain has important interests in keeping Catalonia part of their kingdom, such as wealth and natural resources. The devolution of power does disadvantage Spanish citizens, who likely benefit from taxable income for education, healthcare, and other social services. On the other hand, is it justifiable to deny the people of Catalonia, who possess a distinct language, culture, and history of Spanish oppression, a right to self-determination because of Spanish interests?
Does historical oppression justify secession?
The legal answer seems to be no. According to Damrosch and Murphy, “acquisition of territory by military conquest is now forbidden by international law, but previously-settled title remains in place.” Secession, therefore, should not be granted as a means to circumvent this international maxim. Typically, exceptions are granted to this rule for human rights violations. Yet, Catalonia’s motivations for independence seem to be the preservation of its culture as opposed to escaping some genocide.
Should the preservation of culture justify the creation of new states?
This is an interesting and complicated question. There is no doubt that the ICESCR protects the right of persons to “take part in cultural life.” Spain ratified the ICESCR back in 1977. One might feel that the ICESCR would terminate this discussion, answering in the affirmative. Yet, it is more likely that the ICESCR imposes obligations on Spain to ensure the maintenance of Catalonian culture. Therefore, in the face of declining cultural heritage, Spain should promote Catalonia lifestyle through music, the establishment of museums and libraries, and safeguarding Catalonia’s unique language and history through education.
Secession raises strong considerations on both sides. The rights of Spain and her citizens are in conflict with the rights of the Catalan people. These challenges are not one-dimensional, and thus, require a broad evaluation of relevant legal norms.
 BBC News, Catalonia President Signs Independence Referendum Decree, September 27, 2014, http://www.bbc.com/news/world-europe-29390774.
 Lauren Frayer, Catalonia Lawmakers Approve Holding Vote for Independence from Spain, Sept 19, 2014, http://www.latimes.com/world/europe/la-fg-catalonia-independence-20140919-story.html.
 Lori Fisler Damrosch & Sean D. Murphy, International Law Cases and Materials, 362, 6th ed.
 International Covenant on Economic, Social, and Cultural Rights, art. 15, Apr. 27, 1977.
Copyright is a bundle of rights given to the creators of “original works of authorship”. It is a legal concept designed to grant the creator of an original work the exclusive right to create and distribute copies. Copyright law has often grappled with the conflict between the rights of the copyright owner and the rights of the consumer of the copyrighted work. Under § 106, copyright owners have the exclusive rights to make and distribute copies of a copyrighted work. However, the right to copy and distribute said works is limited by §§ 106-122. Such limitations include but are not limited to fair use reproduction by libraries, and special limitations for computer programs.
The shift towards an all-digital model of distribution for software has only made the conflict between copyright holders and copy holders worse. The rapid growth of the digital economy has helped spur technological innovation and create new global markets. The rise of the digital revolution also comes with its costs. The software industry faces issues of piracy, where users distribute illegal software that could account for approximately 40 per cent of the global market. Software companies that own the copyrights should be and are understandably concerned. One method that copyright holders have adopted to protect their rights is the use of licenses. Virtually all software is licensed to end users so they do not own the copy of software in question but merely have a right to use it. Given the relative ease of copying programs, this issue has enormous importance to software companies. It is in the interest of the companies to restrict distribution in order to protect their copyrights. On the other hand, users have as much of an interest to distribute programs to each other without paying software owners. Fortunately, copyright law also grants the software users some rights against the software companies.
Under the “first sale” doctrine enshrined in §109(a), the sale of a lawful copy terminates the copyright holder’s right to interfere with subsequent sales or distribution of that copy. The first sale deals with the distribution rights of the user for that particular copy. Once the first sale is completed, the copyright owner’s §106(3) exclusive distribution right is “exhausted” and subsequent owners of the copies are free to dispose of it in the manner they choose. The owner of the copy cannot reproduce the work. For example, a book publisher has the right to produce copies and prevent anyone else from making those copies. He sells a book to a customer. Once a publisher sells that book, he cannot prevent the customer from disposing of it however they wish; selling it; leasing it; or simply throwing it away. However, with the emergence of the digital era, distribution is no longer as simple as selling a book to another person.
The emergence of software technology, especially software produced by videogame publishers, has produced problems for copyright. Companies have sought to protect against users transferring the software to other users primarily through contract such as End User License Agreements (EULA). For example, a provision in Electronic Art’s Battlefield 4 EULA states:
Through this purchase, you are acquiring and EA grants you a personal, limited, non-exclusive license to install and use the Software for your non-commercial use solely asset forth in this License and the accompanying documentation. Your acquired rights are subject to your compliance with this Agreement. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing or otherwise distributing the Software or rights to use the Software. The term of your License shall commence on the date thatyou install or otherwise use the Software, and shall end on the earlier of the date that: (i) you dispose of the Software, (ii) your subscription to the Software is terminated, cancelled, or expires, or (iii) EA terminates this License. Your license will terminate immediately if you attempt to circumvent the technical protection measures for the Software.
However, state contract law is preempted by the federal Copyright Act and therefore limited to the extent that the provisions under Title 17 allow. If the Copyright Act allowed users to lease, license or distribute their copy, the license agreements such as the EULA above would not be able to prevent them from doing so. Consequently, if the doctrine of the first sale allows owners of copyrighted work to distribute said work as they saw fit, restrictions on distribution in the EULA would not be enforceable.
There is no bright-line rule that the courts uniformly apply in determining whether a sale has occurred or not. Court decisions have not provided clear instructions on how to approach the license/owner issue. Some courts have analyzed the agreements themselves to determine whether it would be a sale. Others courts have taken a simplistic approach in judging whether there was a sale or not. In MAI Systems Corp. v. Peak Computers, the Ninth Circuit stated that because there was a license agreement that prohibited the copying or use of MAI’s software, Peak could not copy it. The court did not look at the specific terms of the license agreement in its determination. However, a subsequent decision by the Federal Circuit advocated a more nuanced interpretation. In DSC Communications Corp. v. Pulse Communications, Inc., Judge Bryson rejected the Ninth Circuit’s characterization of all licensees as non-owners. Bryson disagreed with the ruling in MAI because it failed to distinguish between the ownership of a copyright and ownership of copies of the copyrighted software. This distinction is important because copy owners may have distribution rights after the “first sale” and are not subject to inference by the holder of the copyright. The court acknowledged that whether right of possession is perpetual or the possessor’s rights were obtained through a single sale were relevant factors in considering software ownership. However, the court still found that Pulse was a licensee because of other restrictions that were inconsistent with the status of owner. However, the legal importance of the court’s interpretation is that labeling a particular transaction as either a sale or license agreement within a contract is not necessarily determinative. The Second Circuit went to apply these factors in Krause v. Titleserve, Inc. By looking at Titleserve’s degree of ownership, the court determined that there was a sale. The court considered the following factors to be relevant: Titleserve paid Krause substantial consideration; Krause never reserved the right to repossess the copies used by Titleserve; Titleserve had the right to continue to possess and use the program forever regardless of its relationship with Krause; and Titleserve could discard or destroy the copies any time it wished. As a result of all of those factors, the court held that Titleserve was an owner of a copy under §117. The court also ruled on the question of formal title. The court stated that the absence of a formal title is a factor but it may be outweighed by evidence that the possessor of the copy enjoys “sufficiently broad rights over it to be sensibly consider its owner.” Justifying the description as a sale, Judge Leval stated:
It seems anomalous for a user whose degree of ownership of a copy is so complete that he may lawfully use it and keep it forever, or if so disposed, throw it in the trash, to be nonetheless unauthorized to fix it when it develops a bug, or to make an archival copy as backup security.
Looking back at the Electronic Art’s EULA for Battlefield 4, the Second Circuit may have determined it was a sale. Looking at the factors considered in Krause, the Battlefield 4’s EULA does not reserve a right to repossess the software. It does not indicate a time limit for owner’s use of the software in relation to EA, it implies that the users may dispose of the software if they wish. It is likely that the user paid for the software, so there was consideration. The Second Circuit’s decision is not binding on other circuit courts. The court precedent on this issue has been unclear and has not provided a clear guideline for courts debating the issue today.
Courts, even within the same circuit, have been inconsistent in deciding whether the purchase of software constitutes a sale, which is subject to the first sale doctrine, or a license, which is not. One of the Ninth Circuit’s more recent cases reflects the prevailing approach of the courts. In Vernor v. Autodesk, the Ninth Circuit took an approach similar to the MAI and DSC Communications cases. The court rejected the district court’s classification of the transfers of AutoCAD copies as sales. The court singled out three considerations to determine whether a software user is a licensee or an owner of a copy. First, whether the copyright owner specified that the user is granted a license. Second, whether the owner significantly restricts the user’s ability to transfer the software. Finally, whether the owner imposes notable use restrictions. Vernor incorporates the MAI face value interpretation of license with the various factor test advocated under DSC Communications. But the stance taken by the Ninth District is in no way set in stone. The factors that courts consider to be dispositive vary from court to court. For example, the Ninth Circuit thought that the transferee’s ability to possess a print indefinitely was not dispositive. In contrast, the Second Circuit placed strong emphasis on the ability of the user to “lawfully use…and keep forever…” Clearly, American courts are having difficulty in generating a consistent approach for addressing what combinations of factors are dispositive in determining a sale or a license.
The current debate on what factors determine whether a software company is licensing or selling copies may not produce the best solution to this problem. A recent court case in the EU may have come up with a novel way of handling this dilemma. The Court of Justice of the EU found that the right to distribute computer software is “exhausted” when the program is downloaded. In UsedSoft v. Oracle, the court took novel yet balanced approach to the issue of software sales. Echoing the 2nd Circuit Court’s opinion, the court noted the awkwardness of granting a customer the right to use a copy for an unlimited time, in return for a fee, would be classified as a license as opposed to a sale. Recognizing the concern of illicit reproduction, the court stated that a user who resold the copy of the software in question must make his own copy unusable when he/she re-sells or distributes it to someone else. This alleviates some of the concern of software companies who would be afraid of their software being copied in violation of their copyright during subsequent distributions of the copy. On the other hand, it preserves the right of the user to distribute the good.
If courts begin taking the approach that the EU may be moving towards, a potential secondary market could emerge. Users who have programs that they no longer use will be able to sell their copies to other users. The benefits are clear to the users who will not necessarily have to buy directly from the software owners. Copyright holders are still able to control the amount of a program distributed through market since users are required to disable their own copy upon transferring it to another user. While the requiring the owner to disable their own copy may be difficult, the use of registration and online authentication upon use may overcome that technical issue. The EU’s new approach to software sales may be the solution that finally ends the ongoing debate.
The consensus on whether software license agreements are sales remains elusive. As noted by the EU Court of Justice, it is a legal fiction to call the transfer of software a license as opposed to a sale. The fiction may be necessary to protect software creators because copying software and distributing illegal copies is now relatively easy. On the bright side, courts are beginning to move beyond simply accepting the agreements as licenses at face value. As courts continue to grapple with the use of license agreements regarding software transfers, the ease of distributing copies of software continues to dramatically increase. Several industries have even begun to shift towards solely using digital distribution. Within the videogame industry, which adapted quickly to online distribution, Valve’s Steam and Electronic Art’s Origin are amongst the most prominent of the distribution systems. Steam alone boasts over 2,000 games that can be downloaded directly to one’s computer. Basing entire economies on agreements that may not be valid is a major concern to all parties. It is not an exaggeration to say that entire markets such as the secondary market for software could emerge if the courts ruled in a certain way. Therefore, it is imperative that either the courts or the legislature provide clear guidance to both companies and users as to software purchases.
Innovation of new, life-saving drugs is partly influenced by how a particular country defines “innovation” and how receptive the country’s laws are to innovation. The Swiss pharmaceutical giant, Novartis, was denied a product patent application from the India Patent Office (IPO) for a specific compound, the beta crystalline form of imatinib mesylate. The drug, Gleevec, is a cancer drug used to treat chronic myeloid leukemia and some gastrointestinal cancers. On April 1, 2013 in Novartis v. India, the Supreme Court of India (“Court”) rendered a verdict against Novartis and affirmed the IPO’s rejection of the patent.
In reaching its decision, the Court considered the 2005 India Patents Act. The Section 3(d) amendment of the Patents Act requires that patents for new forms of known substances should be granted only if they show “significant enhancement in known efficacy.” The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) allows great flexibility in the adoption of patenting standards. The Court interpreted “known efficacy” in Section 3(d) as “enhanced therapeutic efficacy,” meaning that Novartis had to prove that the beta crystalline form of imatinib mesylate resulted in actual improved therapeutic results for patients when compared to the old salt form.
The Court noted that Novartis’ evidence failed to compare the old salt to the new salt, the beta crystalline form. Rather, the evidence compared the new salt with the non-soluble, “free base” form of the drug. It would be interesting to note how India’s standards for efficacy and their application of the TRIPS agreement compare to other countries. Will more countries in the developing world follow India’s lead in this landmark case? If the future market of availability of drugs depends on emerging markets in developing countries, this case may be setting the stage for a larger trend.
The Court has upheld the rule that there must be evidence proving that a new drug has increased efficacy in order for a new patent to be approved in India. India’s standards are harder to meet than countries like the United States or the United Kingdom. As a result, the focus for patents in India shifts to improving end results rather than spurring innovation. After 1995 in the United States, for example, patents with very minor modifications were approved in a practice called “ever-greening.” This allows pharmaceutical companies to charge patients higher amounts for a patent-protected version of their popular drug. This practice encourages “innovation” in a very broad sense but fails to recognize that an important purpose of manufacturing life-saving drugs is to actually see measurable improvements in patients.
The Court’s ruling in Novartis v. India took the position that improved modifications are more important than promoting modifications in drug patents. If a particular country shifts the focus from drug marketing to drug efficacy, there could be a major shift in the way international patent law is interpreted and implemented.
 Frederick Abbott, The Judgment In Novartis v. India: What The Supreme Court Of India Said, Intellectual Prop. Watch (Apr. 5, 2013, 9:30 PM), http://www.ip-watch.org/2013/04/04/the-judgment-in-novartis-v-india-what-the-supreme-court-of-india-said/.
Cancer Drugs to Remain Affordable as Novartis Loses Indian Patent Battle, IBN Live (Apr. 5, 2013 10:05 PM), http://ibnlive.in.com/news/sc-denies-patent-to-novartiss-glivec-cancer-drugs-to-remain-cheaper/382394-17.html [hereinafter Cancer Drugs].
 Abbott, supra note 1.
 Cancer Drugs, supra note 2.
In light of the recent oral arguments that the United States Supreme Court heard on March 26-27, 2013, the issue of same-sex marriage made the forefront of American news and media. The issue is not isolated to just the US. In fact, several countries, including France, New Zealand, and Uruguay, have pending legislation before their governments to legalize same-sex marriage, and eleven countries have legalized same-sex marriage on a national scale.
In 2001, the Netherlands was actually the first country to legalize same-sex marriage nationwide. Recently this week, senators in Uruguay approved a marriage equality bill, and senators in France began evaluating a similar bill. The French bill, if passed, would not only legalize same-sex marriage, but would also allow same-sex couples to adopt children. If Uruguayan senate passes the bill, it would be the first Latin American country to allow both same-sex marriage and adoption of children.
For the most part, the legalization of same-sex marriage, whether nationally or just in a few states, has only been recognized in North America, South America, and Europe. South Africa is the only country in Africa to legalize same-sex marriage nationwide, with a few African countries imposing a death penalty for same-sex relations. No East Asian, South Asian, or Southeast Asian country has passed a bill legalizing same-sex marriage; however, that might be changing. In Taiwan, where Taipei is home to Asia’s largest annual gay parade, a bill has been pending since 2003. In 2008, the Supreme Court of Nepal ruled in favor of legalizing same-sex marriage, and more recently in July 2012, the Vietnamese Justice Ministry said it would “consider a provision for same-sex marriage rights” as an amendment to the country’s marriage laws.
The same-sex marriage issue in countries with pending legislation certainly remains divided and controversial. However, it is interesting to note that the leaders of those countries do support the passage of their same-sex marriage bills. In France, the bill likely passed in the lower house of Parliament with the support of President Francois Hollande. In Uruguay, the bill passed in the lower house by an overwhelming majority, and Uruguayan President Jose Mujica supported the passage. Given President Obama’s interpretation of the Constitution as one supporting “a fundamental right to same-sex marriage,” it will be interesting to see whether the Supreme Court and future congressional legislation reflect a similar sentiment.
In light of Justice Kennedy’s opinion in Lawrence v. Texas, the trends of the international community can play a role in shaping the decisions of the US Supreme Court. It will be interesting to see whether the Supreme Court will consider the recent international trend of legalizing same-sex marriage when they make their upcoming decisions in the Defense of Marriage Act and Prop 8 cases. It will also be interesting to see if and how the US Supreme Court’s decisions will influence the international community, especially the countries with pending same-sex marriage legislation.
 The United Supreme Court heard oral arguments for Hollingsworth v. Perry on March 26, 2013 and United States v. Windsor on March 27, 2013. The audio and transcript of each oral argument are available at http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144; and http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-307.
 Kyle Almond, Same-sex Marriage: Who Will Legalize It Next?, CNN World (Apr. 4, 2013, 8:28 AM), http://www.cnn.com/2013/04/04/world/same-sex-marriage-next-country/index.html?hpt=wo_t5.
 Id. (Argentina was actually the first Latin American country to legalized same-sex marriage back in 2010).
 Laura Smith-Spark, French Lawmakers Approve Same-Sex Marriage Bill, CNN (Feb. 12, 2013, 11:38 AM), http://www.cnn.com/2013/02/12/world/europe/france-gay-marriage-vote/index.html.
 See Kyle Almond, Same-sex Marriage: Who Will Legalize It Next?, (citing Poll: Uruguayans Favor Same-Sex Marriage by 20 Points, AfterMarriage Blog (DEC. 20, 2012), http://aftermarriageblog.wordpress.com/2012/12/20/poll-Uruguayans-favor-same-sex-marriage-by-20-points/
 Devin Dwyer, President Obama Explains Legal Argument for Same-Sex Marriage, ABCnews: The Note Politics Blog (Mar. 1, 2013, 8:11 PM), http://abcnews.go.com/blogs/politics/2013/03/president-Obama-explains-legal-argument-for-same-sex-marriage/.
 See Lawrence v. Texas, 539 U.S. 558, 560 (2003).
In June of 1971, President Richard Nixon’s declaration of a “war on drugs” effectively cemented an orthodoxy that has permeated most aspects of modern society. What was once considered a matter of public health has become a militarized and profit-driven industry, formidable enough to shape the global environment in its own image. While originally expected to quickly and significantly reduce drug trafficking in the US, to this day the war surges on— enormous, bloated, and hungrier still. After 42 years, we are no closer to ending this war, despite the millions of lives and the trillions of dollars that have been lost on the front line.
The war on drugs has been waged on anyone who comes into contact with scheduled substances in any form. From coca farmers in Colombia and poppy growers in Afghanistan, to meth labs in New Mexico, recreational marijuana smokers in California, and everyone in between—the war is being fought on all fronts simultaneously. In 2010, about 200 million people used illegal drugs which, along with the estimated volume of drugs produced worldwide, has stayed relatively constant for years. The cost of maintaining the war, however, has only increased. While the Nixon administration’s war called for $100 million a year, Federal Drug Control spending for 2012 under President Obama was over $25 billion.
Domestic drug prohibition is responsible for the incarceration of roughly 2.25 million Americans, which accounts to almost one-in-four of the world’s entire prison population. Half of federal prisoners, and 1-in-5 state prisoners, are non-violent drug offenders, while more still are serving sentences for violent crimes related to the drug trade. As mass incarceration becomes normalized, minorities and the poor are disproportionately affected, despite a comparable ratio of drug use and selling rates among all races.
The drug war transcends national borders, which makes its administration and application particularly difficult. It an attempt to compel Latin American countries like Colombia, Mexico, and Bolivia to crack down on drug cultivation, American drug policies have resulted in an escalation of drug-related violence and an increase in the going rates of banned substances. The inherent flaw in a prohibitionist policy is that illegality of the trade only creates a greater black-market premium, which increases the incentive to get into the business and lines the coffers of the largest and most dangerous cartels and complicit financial institutions like HSBC— which was able to avoid federal prosecution this year with a $1.9 billion settlement.
According to an exhaustive report by the U.N., the worldwide drug trade is estimated to be the third largest industry in the world behind oil and weapons, worth over $320 billion a year. Yet, as evinced by a recent UN Commission on Narcotic Drugs, advocates for global prohibition are seeking to expand. Yuri Fedotov, head of the UN Office on Drugs and Crime, believes prohibition is the only viable method to combat the dangers of drug use. “Alcohol, a legal drug, kills about 2.3 million people worldwide each year. Tobacco kills 5.1 million. With illegal drugs, on the other hand, the numbers are much lower, with 200,000 people a year falling victim to heroin, cocaine or crack.” Fedotov views these statistics as evidence of prohibition’s success. Similarly, President Obama, who initially called for a change in the current draconian drug policy, has continued to seek billions of dollars from Congress for international drug war programs that have thus far, proven unsuccessful.
Though the paradigmatic trend of an ever-increasing prison-industrial complex and burgeoning fervor for universal prohibitionist policies are in full swing, public polling indicates that a vast majority of Americans (82%), believe the war on drugs is failing. There are two liberalizing positions that have emerged in the drug debate: legalization and decriminalization. In 2012, Colorado and Washington voters decided to legalize recreational marijuana in defiance of federal laws that prohibit use even for medicinal purposes. Though it is unclear how the Obama administration will approach this conflict of laws, more states are introducing legislation and ballot initiatives to legalize marijuana. In any case, as marijuana becomes more readily available in the US, it becomes much more difficult for the government to rationalize the expenditures and the toll taken by the drug war in its efforts to keep drugs out.
Full legalization, however, is generally more extreme than most countries are willing to consider. The long-lived ban on illegal narcotics has shaped our collective morality for decades, and thus restricts the breadth of action many countries might feel comfortable taking. Still, many are moving toward change. In recent years, Latin American governments have started to contest the institutionalized drug war and decry its ineffectiveness. 12 years ago, facing one of the highest HIV rates in Europe, Portugal effectively decriminalized all drug use and began targeting intravenous users with therapy and clean needles rather than punishment. While possession of drugs is still technically illegal, it is generally treated more like a parking infraction and criminal proceedings are only initiated in instances where the drug user has more than a 10-day supply. After over a decade, the results indicate that this strategy may be working, as the number of documented “hard” drug users has fallen by half and new instances of HIV have fallen significantly.
While alternative approaches to prohibition are still new and experimental, relative to the dominant policy, it is important to note that the world largely recognizes that the “War on Drugs” is a war of attrition. Those countries most ravaged by the armed violence associated with the drug trade are beginning to reconsider the harsh global prohibitionist policies implemented at the behest of the United States. This will allow for a more expansive and constructive dialog to form that will, in turn, facilitate greater experimentation in alternative approaches. In a press conference before the 2013 United Nations Development Report, Helen Clark, head of the United Nations Development Program, commented, “To deal with drugs as a one-dimensional, law-and-order issue is to miss the point.” Indeed, the point seems to be that the first step to winning this war is to stop treating it like one.
 Gary S. Becker and Kevin M. Murphy, Have We Lost the War on Drugs?, The Wall Street Journal, Jan. 4, 2013, http://online.wsj.com/article/SB10001424127887324374004578217682305605070.html.
 Jochen-Martin Gutsch and Juan Moreno, Our Right to Poison: Lessons from the Failed War on Drugs, Spiegel Online, Feb. 22, 2013, http://www.spiegel.de/international/world/global-support-grows-for-legalizing-drugs-a-884750.html.
 "FY 2013 Budget and Performance Summary," Executive Office of the President, Office of National Drug Control Policy, April 2012, http://www.whitehouse.gov/sites/default/files/ondcp/fy2013_drug_control_budget_and_performance_sumary.pdf
 David Case, America’s Drug War of Attrition, Salon, Mar. 14, 2013, http://www.salon.com/2013/03/14/americas_drug_war_of_attrition_partner/
 Leonard Birdsong, The War on Drug is Already Lost, Drug Decrminalization and Felony Disenfranchisement: The New Civil Rights Causes, Summer 2001, http://academic.udayton.edu/health/01status/drugs02.htm
 Bill Weinberg, Plan Colombia: Exporting the Model, North American Congress on Latin America, 2009, https://nacla.org/weinberg_colombia.
 Aruna Viswanatha and Brett Wolf, HSBC to Pay $1.9 Billion U.S. Fine in Money-Laundering Case, Reuters, Dec. 11, 2012, http://www.reuters.com/article/2012/12/11/us-hsbc-probe-idUSBRE8BA05M20121211
 Michael Shields, U.N. Drug Czar Seeks Help to Stem Narcotics Flow, Reuters, Mar. 21, 2013, http://www.spiegel.de/international/world/global-support-grows-for-legalizing-drugs-a-884750-4.html.
 Supra 2
 Natalia Cote-Munoz, Obama’s Drug Policy: Yet Another Broken Promise, Council on Hemispheric Affairs, July 28, 2011, http://www.coha.org/obamas-drug-policy-yet-another-broken-promise.
 Supra 3
 7% Think U.S. Is Winning War on Drugs, Rasmussen Reports, Nov. 13, 2012, http://www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/november_2012/7_think_u_s_is_winning_war_on_drugs.
 Wiebke Hollerson, ‘This Is Working’: Portugal, 12 Years after Decriminalizing Drugs, Spiegel Online, Mar. 27, 2013, http://www.spiegel.de/international/europe/evaluating-drug-decriminalization-in-portugal-12-years-later-a-891060-2.html.
 Gabriel Stargardter, U.N. Development Chief Flags Failings of “War on Drugs”, Reuters, Mar. 14, 2013, http://www.reuters.com/article/2013/03/15/us-un-drugs-idUSBRE92E01W20130315.
Apple settled the “iPad” trademark lawsuit by agreeing to pay $60 million to Shenzhen Proview Technology. While seemingly a huge amount of money, it is a small price to pay for Apple to “safely” explore the promising Chinese market for their new iPad product. Moreover, under the undisputable facts and rules of the iPad trademark case, settling may be the best option for Apple.
Financially, settling the case by paying $60 million is a worthwhile investment for Apple. “For Apple, which has billions of dollars in cash reserves in the US and abroad, the payment will be a small cost towards a far larger goal of reaching the hundreds of millions of Chinese consumers who might want its products.” “China is Apple’s second-largest market after the US,” and settling this case clears up the obstacles for the sales of the new iPad 3 in China. Apple’s revenue in China tripled to $7.9 billion last quarter, largely surged by the demand of the iPad tablet. The Cupertino, California-based company’s global sales of iPads topped 32 million units last year, earning revenue of $20.4 billion. The potential revenue from future sales in China would significantly outweigh the cost of $60 million.
According to Chinese trademark law, the facts and the predictable outcome of the case are both relatively undisputable. Although there have been various cases of trademark infringement in China, this does not seem like one. Shenzhen Proview Technology Co., Proview’s mainland subsidiary, registered the iPad trademark in China in 2001. In 2009, Apple paid 35,000 pounds to use the iPad name in mainland China, and the dispute is over the ownership of the iPad trademark in mainland China. A seemingly IP law issue became an issue of corporate law, since the party signing the trademark ownership transfer was Proview’s Taiwan subsidiary, and therefore may not be binding on Proview’s mainland subsidiary. “Article 3 of Chinese Corporate Law says that a company is an enterprise legal person, which has independent property of a legal person and enjoys the property rights of a legal person.” In practices, we need to consider the following conditions for personality confusion between corporations: (1) asset confusion, such as combined funding and mixed financial management; (2) business confusion, such as the overlap of business scope or business crossings; (3) labor and personnel confusion, such as joint legal representative, senior management, or the bilateral employment of the employees; (4) the confusion of the place of business.” Under the current case, the China mainland subsidiary and the Taiwanese subsidiary, are financially, operationally, managerially, and geographically separate entities. Moreover, there are no mutual shareholdings between the two companies.  Therefore, there is little personality confusion between the two companies, and it is unlikely that the court will find the Taiwan subsidiary of Proview’s contract will be binding on its mainland’s subsidiary. Chinese law provides that a corporation need be responsible for its legal representative’s liability, and the two subsidiaries are actually represented by the same representative; therefore, the intention of the representative when signing the contract is of great importance in the outcome of the case. Based on the above analysis, the holding of the case is unlikely to be favorable to Apple, so settling at a reasonable cost seems to be a rational decision for Apple.
Keith Bradsher, Apples settles an iPad Dispute in China, N.Y. Times, Jul. 2, 2012, at B7, available at http://www.nytimes.com/2012/07/02/business/global/apple-settles-an-ipad-trademark-dispute-in-china.html
Charles Arthur, Apple pays $60m to settle iPad dispute in China, The Guardian, Jul. 2, at 26, available at http://www.guardian.co.uk/technology/2012/jul/02/apple-settle-ipad-dispute-china
Bloomberg News, Apple Pays Proview $660m to Resolve IPad Trademark Dispute, Bloomberg, http://www.bloomberg.com/news/2012-07-02/apple-pays-60-million-to-end-china-ipad-dispute-with-proview.html (Jul. 1, 2012, 11:40 PM).
iPad Trademark Battle and China Corporate Personality Confusion System, Bridge IP Law Commentary, http://www.chinaiplawyer.com/ipad-trademark-battle-china-corporate-personality-confusion-system/.
 See Id.
On March 3, 2013, a major Internet pirating website, The Pirate Bay, leaked information to the press relating to an intention of the company to relocate its servers to North Korea. The Pirate Bay later admitted that the statements had been made as a prank, but this leads to the question; can Internet only companies simply run across jurisdictions to escape prohibitive laws within the own countries?
The Pirate Bay posted a blog post stating that they had been invited by “Korean leaders” to relocate their servers into North Korea, in order to avoid persecution by Norway and Catalonya. The post included statements that the move was based on intentions to seek “virtual asylum” based on the laws of the country, and allowances by Korean leaders to allow such activities within its jurisdiction. However, based on previous access to the pirating website and internet accessibility within North Korea, it is an easy assumption that the website will likely be accessed more in countries that are not permitting such hosting, such as the US or much of Europe, than in North Korea.
Based on international law, each country enforces its own laws relating to trademarks and copyright infringement. This would allow for The Pirate Bay to pay their fines in Sweden, and to escape to another country in which to host the website, while continually supplying pirated material to Swedish citizens. Through the Internet, a user can be located within any number of countries at once, each with different laws relating to Internet activities. This varied jurisdiction complicates the traditional foundation of territoriality. This creates a possibility for a country to theoretically claim jurisdiction over the Internet activities of an individual if they are using a website hosted within the country’s jurisdiction, regardless of where the individual is physically located.
US courts have consistently held that patent and copyrights laws do not apply to conduct within international jurisdiction, unless there is some act of infringement within the United States. Courts have shown that there should not be application of US laws internationally against foreign citizens acting under foreign laws and trademarks.
Such issues involved in international jurisdiction of Internet pirating of copyrighted material have no easy solution. As with many other aspects of emerging technology, advancements in Internet pirating came much faster than the law relating to such activities. As long as every country involved views jurisdictional elements of Internet browsing within their own jurisdiction, there are no simple means of determining jurisdiction in a way that will prevent companies such as The Pirate Bay from merely running from jurisdiction to jurisdiction to avoid the anti-piracy laws within each. The solution may not even be legal in nature. There could be a joining of countries that agree on the terms of Internet laws, followed by a restriction of access to material by users within those countries to that posted by others within such jurisdiction.
As we continue to make technological and Internet-based advances, suits for jurisdiction will only face more problems of this type. It is an issue that warrants attention and should be focused on in legislative and international views of the law.
 Ian Paul, The Pirate Bay Admits to North Korean Hosting Hoax (2013), http://www.pcworld.com/article/2030073/the-pirate-bay-admits-to-north-korean-hosting-hoax.html.
 Kim Jung-Bay, Press Release, New Provider for TPB (2013), http://thepiratebay.se/blog/229.
 Director's Guild of Am., Piracy By the Numbers (2010), http://www.dga.org/Craft/DGAQ/All-Articles/1001-Spring-2010/Internet-Issues-Piracy-Statistics.aspx.
 Balough Law Offices, International Jurisdictional Issues Related to the World Wide Web and the Internet, http://www.balough.com/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=1254.
 Bradley, Extraterritorial Application of U.S. Intellectual Property Law: Principal Paper: Territorial Intellectual Property Rights in an Age of Globalism, 37 Va. J. Int'l L. 505, 543 (1997).
 Vanity Fair Mills v. Eaton, 234 F.2d 633 (1956).
 Dr. Faye Fangfei Wang, Obstacles and Solutions to Internet Jurisdiction a Comparative Analysis of the EU and US Laws, 3 J. of Int'l Com. L. & Tech. 233-241 (2008).
In an attempt to balance freedom of expression and compliance with local laws, Twitter has blocked users in Germany from accessing the account of a neo-Nazi group that is banned by the government. This move is Twitter’s first step applying its new censorship policy announced in January. Under the policy, the group’s tweets will appear to German users as greyed-out boxes with the words “@Username withheld” and “This account has been withheld in: Germany.” This is part of Twitter’s effort to be transparent while complying with censorship policies and laws of different countries so that it doesn't have to be shut down in those countries. While promoting limitation on hate speech and restraints on racist expression, the policy also creates concerns of violating freedom of speech and its actual effectiveness.
The blocked Twitter group belongs to a far-right organization known as the “Besseres Hannover”. The group is said to be a neo-Nazi organization that promotes racism, xenophobia, homophobia, and anti-Semitism. Considering these questionable values, which neo-Nazism is disseminating, and Germany’s complicated history of Nazism since WWII, banning certain Nazi-related symbols and comments appears to be a socially beneficial regulation within Germany.
Younger generation’s use of social network websites in Germany can give them unlimited access to uncensored information. Most teenagers don’t have the judgment of a prudent adult, and their values could be easily affected by the information that they are exposed to. Measures such as limiting online access to neo-Nazi organizations and groups would certainly create a “cleaner” Internet environment for the younger generation.
Twitter’s compliance with German law would also help reduce racism and comfort minority groups, helping promote social harmony. As explained in New York Times article, Twitter blocks German Access to Neo-Nazi Group, “Members of the neo-Nazi group used ‘Pied Piper methods’ to lure young people into their orbit, including distributing a right-wing magazine outside schools. They harassed, threatened and even attacked migrants, and were suspected of sending right-wing messages to a government official of Turkish background.”  Although nationally forbidden, some extreme behaviors directed at certain minority groups still occur throughout Germany because of neo-Nazism. Restricting neo-Nazi group’s distribution of messages within Germany would serve the country’s effort to protect historically harmed minorities against racism.
In contrast to the social benefit in Germany, Twitter’s compromise with German law and censorship policy raises concerns about potential violations of freedom of expression. Although Nazi slogans and symbols are illegal in Germany, German law may not be the dominant power in Twitter policies. Twitter is a company from the United States and the United States grants extensive protection of freedom of speech under the first amendment of the Constitution. Twitter’s policy may indicate a potential violation of a basic human right protected by the US Constitution.
Blocking neo-Nazism group is Twitter’s first attempt to adopt its censorship policy. However, this first attempt to reconcile with local policy may have opened the gate to the abusive censorship of political and religious agendas by other national governments. For instance, a government may negotiate with Twitter to censor anti-government or religious comments. To some extent, Twitter’s cooperation could encourage a government’s abuse of power, since they can change the law accordingly to limit Internet information availability to their citizens.
Twitter is not the only Internet resource or social network website that has users all over the world, nor is it the first company to comply with the German government’s regulation. Twitter is another example of a major international networking site that is attempting to maintain its market by compromising with local laws. The cumulative effects of other companies potentially following Twitter’s example could lead to worldwide violations of freedom of speech.
Another concern with Twitter’s move is that blocking access to Nazi groups may not stop access to neo-Nazi content and messages in Germany. There are millions of comments on Twitter each day, and Twitter can block certain groups that catch people’s attention, but it cannot censor every comment each user posts. Even after blocking all the Nazi groups on Twitter, people can still access messages that disseminate Nazi values.
Furthermore, Twitter only banned access to the neo-Nazi group in Germany, while users from other countries can still access the group. Users that know about the group can easily find ways to get around the block placed by Twitter and browse the banned content.
Some people argue that there are more efficient ways to cope with Nazism than blocking access to neo-Nazi information. For example, some argue that a proper education which teaches individuals to assess values from Nazism would be the better method to consolidate long term social beliefs. Directly confronting Nazism instead of avoiding it may create a more thorough understanding of basic human values within German society. Therefore, Twitter’s actions may actually hinder the process of eliminating Nazi thoughts.
Jillian C. York, the director for international freedom of expression at the Electronic Frontier Foundation, said, “It’s not a great thing, but it’s a way of minimizing censorship. It’s better for Twitter if they can keep countries happy without having to take the whole thing down.”  In order to survive in certain countries, it may be a necessary for an international company to compromise by tailoring its policies to local law; however, too much appeasement can lead to abuse of power and violate basic human rights. A line must be drawn. Since each country has its own sensitive issues and customized laws, the burden of balancing social policy with the protection of individual rights falls upon the discretion of companies like Twitter until a binding international standard appears.
 Nicholars Kulish, Twitter Blocks German’s Access to Neo-Nazi Group, N.Y. Times, Oct. 18, 2012, available at http://www.nytimes.com/2012/10/19/world/europe/twitter-blocks-access-to-neo-Nazi-group-in-germany.html?pagewanted=1&_r=0&ref=europe
 Will Oremus, Twitter Censors a User For the First Time, But it’s Hard to Get Too Outraged About it, Slate http://www.slate.com/blogs/future_tense/2012/10/18/twitter_censors_neo_nazi_group_besseres_hannover_is_first_user_blocked_under.html
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It would appear that not all is well in the Kingdom of Spain. Besieged on all sides by wracking fiscal woes, Prime Minister Mariano Rajoy, like a physician of old, has taken up a scalpel to bleed Spain’s debt-clogged arteries through program cuts. Arguably the most controversial of the Rajoy Administration’s cuts is the decision to restrict free, state-sponsored healthcare of undocumented immigrants.
Starting on September 1, 2012, Royal Decree-Law 16/2012 (“Decree”; “Real Decreto-Ley” or “R.D.-Ley” in Spanish) entered into effect. The Decree provides, inter alia, that undocumented immigrants in Spain will now have free access only to basic healthcare—and then only in cases of emergency or pregnancy. The Decree did not modify the existing healthcare rights of undocumented minors under the age of 18; they still enjoy the same free healthcare rights that full Spanish citizens enjoy.
Before Decree 16/2012, all that was required of an undocumented immigrant to receive free health care was to register with the local government of the community where the immigrant was residing. This process (“empadronamiento”), in addition to being free, was typically quite simple; the immigrant needed only to present a passport from her country of origin and some proof that she was physically living within the local community to obtain empadronamiento. Empadronamiento would then confer eligibility to receive a government Health Card, giving the undocumented immigrant free access to the full range of health services the Spanish State offered.
On September 1, Decree 16/2012 nullified the Health Cards of those without Spanish Legal Residence permits and made Legal Resident status a necessary prerequisite to the issuance of a Health Card. Thus, the simple process of empadronamiento is now no longer by itself sufficient to successfully apply for a Health Card; empadronamiento and legal resident status are both required. The galvanizing rationale behind this heart of Decree 16/2012 was to halt a practice commonly known as “health tourism.” In broad brush, many undocumented immigrants would come to Spain; complete a free, relatively simple empadronamiento; receive a Health Card; use that card to obtain a European Health Insurance Card (“EHIC” in English, “Tarjeta Sanitaria Europea” or “TSE” in Spanish); return to their home countries; and remit to the Spanish Government the bill for medical care received in their home countries.
The Court of Accounts estimated that health tourism was annually costing the cash-strapped Spanish Government around one billion euros. Now, if an undocumented immigrant wishes to enjoy the same, full-range access to healthcare as before and cannot obtain legal resident status (which tends to be the case), the immigrant must first meet certain physical presence requirements and then pay annual premiums to the State—710.40 euros per year (59.20 euros per month) in the case of those between the ages of 18 and 65, and 1,864.80 (155.40 euros per month) in the case of those older than 65. In essence, undocumented immigrants must now pay to have access to the same full range of health services that Spanish citizens and legal residents receive for free.
Decree 16/2012 has thus hurtled already-tumbling Spain into further disarray. Many of Spain’s regional governments, even some of which are controlled by Prime Minister Rajoy’s own conservative People’s Party (“Partido Popular” or “PP”), have roundly refused to implement Decree 16/2012, classifying it as an injudicious and dangerous measure. Additionally, the Decree has generated doubts as to the constitutionality of its provisions.
The General Counsel to the Spanish Bar Association (“Consejo General de la Abogacía Española” or “CGAE”) recently issued a communiqué to Minister of Health, Social Services, and Equality Ana Mato, writing that the Spanish Constitution recognizes the universal and fundamental nature of the right to health as “not tied either to [Spanish] citizenship or to legal residence.”[i] The opposition party, the left-leaning Spanish Socialist Workers’ Party (“Partido Socialista Obrero Español” or “PSOE”), is currently evaluating the possibility of mounting a constitutional challenge to Decree 16/2012 before the Tribunal Constitucional (“TC”). The PSOE justifies this course of action by characterizing the Rajoy Administration’s healthcare cuts as “sowing racism” and xenophobia, declaring that the cuts will only generate increased long-term expenditures that will come out of government coffers.[ii]
The primary arguments for the Decree’s unconstitutionality tend to cluster around three injuries: the denial of a fundamental right guaranteed under the Spanish Constitution; the imposition of unequal treatment in violation not only of the Spanish Constitution, but also the General Public Health Law (“Ley General de Salud Pública” or “LGSP”); and the national government’s encroachment upon powers reserved to the regional spheres of Spain’s Autonomous Communities.[iii] In American constitutional parlance, we might respectively analogize these to a Substantive Due Process claim, an Equal Protection claim, and a Federalism claim.
Are these claims likely to succeed? On the one hand, we see that the newly-instituted monthly premiums that undocumented immigrants must pay to receive the same range of health services that they once received for free strikes a blow against one of the most vulnerable and resourced-starved collectives in the country. Given the high rate of unemployment in Spain, and the lack of resources and education in the Spanish undocumented immigrant community, it does not seem likely that all members of the class will be able to pay the requisite State premiums every month to access the same level of care as before. Moreover, the LGSP states that, in receiving healthcare, “everyone” has the right not to be discriminated against on the bases of “birth, racial origin, ethnicity, sex, religious convictions or opinions, age, disability, sexual orientation or identity, sickness, or any other social or personal condition or circumstance.” This provision incorporates language found in Article 14 of the Spanish Constitution and would seem to provide fertile ground for a particularly robust Equal Protection claim.
On the other hand, the nondiscriminatory provision of the LGSP is listed under the heading “Rights of Citizens.” From a purely textualist perspective, one could quite reasonably conclude that “everyone” in the pertinent part of the LGSP means that “every citizen” has the right not to be discriminated against on any of the bases listed. Too, as several members of the PP have pointed out, the current cuts and resulting premiums do not leave undocumented immigrants without some minimum degree of health protection. At a meeting with National Health System councilors in Valladolid, Minister Ana Mato assured that “no one would go unattended,” reiterating that the State will continue to provide not only free emergency care, but also the same full range of free care to minors and pregnant women as before Decree 16/2012. Article 43.1 of the Spanish Constitution recognizes that a right to health protection exists, but this requires only some constitutionally-minimum level of care. Article 43.1 may not require the State to provide free preventative care to preserve an individual’s right to health protection; Article 43.1 instead may simply require the State to protect an individual’s life in dire situations, which the Rajoy Administration’s cuts arguably still do.
All that is known now with any appreciable degree of certainty is that both the supporters and the detractors of the Decree will not back down without a fight. If you are performing research on this topic and would like to receive relevant information and resources, or if you have any questions concerning the above discussion, please email Robert Semones at firstname.lastname@example.org.
[i] See La Abogacía Española, contraria a que el Gobierno restrinja el derecho de salud a los inmigrantes, Diario Jurídico (Aug. 22, 2012), http://www.diariojuridico.com/actualidad/la-abogacia-espanola-contraria-a-que-el-gobierno-restrinja-el-derecho-de-salud-a-los-inmigrantes.html (detailing the content of the Spanish Bar Association’s comuniqué to Ana Mato).
[ii] Hernando: al Gobierno "le sobran" todas las personas que suponen un gasto, como inmigrantes sin papeles o los parados que cobran 400 euros; El PSOE estudiará la posibilidad de interponer un recurso de inconstitucionalidad contra los recortes en materia sanitaria para la población inmigrante, PSOE Sala de Prensa (Aug. 11, 2012), http://www.psoe.es/ambito/saladeprensa/pressnotes/index.do?id=660148&action=View
[iii] The “Comunidades Autónomas” are subnational units of government which may be likened to states or provinces. They include Andalucía, Cataluña, and Valencia.
It’s time for the United States to leave Afghanistan. After eight years of being in Afghanistan, the United States finally found the right approach to democratizing Afghanistan, but their past assumptions of the Afghan people have antagonized and disillusioned the very people they intended to help. In doing so, the United States created the very conditions it assumed existed over ten years ago. When the United States invaded Afghanistan in 2001, it shaped its policies largely on the assumption that the Afghan people were anti-foreign. In relying on this assumption, the United States created several problems for both itself and Afghanistan.
Because past countries met local resistance in Afghanistan, the United States prepared resources and manpower to cope with this resistance. The Soviet Union experienced anti-foreign backlash when it invaded Afghanistan in 1978. Because of the Soviet experience with the Afghan people, the United States developed a policy that it thought would minimize the Afghan people’s xenophobia. The Soviet Union’s large presence in Afghanistan was not accepted by the Afghan people. However, the Afghan people did not reject their large presence because of its size, but because the Soviets would call in artillery and air strikes on villages without warning the inhabitants. Genuine fraternization between Soviets and Afghans was therefore discouraged. Instead of trying to win support, the Soviets threatened the civilians.
There is much evidence that it was how the large presence was used that led the Afghan people to reject it. Ignoring this evidence, the United States initially decided to have a small presence in Afghanistan. The reasoning for this was almost too simple and naïve: because the Soviet Union’s large presence failed, the United States should adopt a light footprint policy to minimize an anti-foreign response. Although the Soviets experienced anti-foreign attitudes, a light footprint policy was not the appropriate response. The United States completely ignored that it was the Soviets’ threats to the Afghan people that created this so-called anti-foreign response—not merely their large presence.
Because the United States wanted to prevent large-scale popular resistance, it has kept a small number of troops in Afghanistan. But small numbers is not how a country achieves population protection—a large footprint is needed for this. Due to the United States’ light footprint policy, there has been a lack of security forces in Afghanistan. In response to the lack of security, the Taliban became more accepted as a political leader and the Afghan people began to resist the United States occupation. In a 2008 report, the Pentagon acknowledged that the insufficient U.S. military trainers inhibit Afghanistan’s police force. In failing to analyze how the Soviets used or misused their heavy footprint, the United States failed to consider that it was not the heavy occupation itself that caused popular resistance, but how it was used.
By relying on this assumption, the mission at Tora Bora failed. In December 2001, American and Afghan forces surrounded Tora Bora where Osama bin Laden was present. Despite the certainty of Osama bin Laden’s presence, the United States failed to capture him. In Tora Bora Revisited, Senator Kerry wrote that the reason Osama bin Laden was not captured at Tora Bora was because the United States was concerned that too many U.S. troops in Afghanistan would create an anti-American backlash and fuel a widespread insurgency.
Partially due to this faulty assumption, the United States remains in Afghanistan today. Because of its large financial and ground presence, the surge is the right approach. However, due to the past assumptions, it almost seems too late for even the appropriate policy to succeed. The United States has antagonized Afghans and has sadly created the very conditions it assumed existed over ten years ago. This truth is manifested in the Koran burnings, the civilian protests, and the growth of the Taliban in areas where it has never before flourished.
I just finished Instant City by NPR’s Steve Inskeep. The book delves into the history and development of one of the world’s most populous cities: Karachi, Pakistan. A quick disclaimer: I have a particular interest in Karachi - my parents spent most of their formative years there, and I visited the city last spring for first time since I was in grade school. Even if urban development and rule-of-law issues in South Asia don’t typically get you riled up, however, you should check out this book. Inskeep provides deep, balanced insight into our (pseudo) ally, and there are revealing parallels to be drawn between Karachi and the capitals of the Arab Spring.
Inskeep portrays Karachi as a textbook example of an “instant city,” one that grew at an astonishing rate - thirty-fold in Karachi’s case - during the latter half of the 20th century. Inskeep traces Karachi’s post-colonial shift from a religiously and ethnically diverse British entrepôt to an overwhelmingly Muslim national capital heaving with refugees. As the Cold War bore on, American-funded utopian plans to house the endless stream of refugees gave way to autocratic planning worthy of the Soviet Bloc as the floundering democracy succumbed to the grip of the generals. As the military government and American aid streamed north to newly-constructed Islamabad and the roiling Afghan border, the city experienced more acutely what Pakistan as a whole experienced to some degree: a collapse in governance and property rights and a lapse in the rule of law. In this vacuum, sectarian interests came to dominate an ever-factitious dystopia where political rallies routinely give way to killing sprees and Al-Qaeda notables issue directives un-detected.
The Arab capitals we’ve been watching this spring are, like Karachi, “instant cities.” Cairo, Tunis, Algiers, and Amman have experienced explosive demographic changes - from the rapid urbanization of Cairo to the streams of Palestinians settling in Amman. None of these cities can lay claim to Karachi’s unique brand of dysfunctionality, yet there are more moderate similarities. All of these cities have experienced top-down, autocratic attempts to direct investment and growth that focused on grand schemes at the expense of the masses. All of these cities play host to similar disparities in living conditions and all of these cities are facing streams of migration that show no signs of abating.
The nascent democratic governments of Egypt and Tunisia and the seemingly reform-minded King of Jordan would do well to create livable spaces for the urban poor. As in Karachi, while the far-slung slums of these unwieldy agglomerations breed extremism, Inskeep reminds us that there is enormous potential for the disenfranchised in the city through education and employment as long as they are mainstreamed and not alienated.
Inskeep’s musings on Karachi can more broadly serve to illustrate the strategic importance of combating extremism through promoting the rule of law. Well-managed cities can uplift masses; poorly managed cities will continue to breed divisions that extremists prey on.
The Palestinian Circus School started as a small circus group in 2006.
I went in 2010.
After completing my ten-day birthright trip through Israel I emailed the Palestinian Circus School asking if I could take a tour and possibly offer trapeze workshops to their students. The two founders of P.C.S. promptly responded that I was welcome anytime and gave me their personal phone numbers to call as soon as I arrived in Ramallah. Their initial warmth and hospitality was just a touch of what I would find throughout the West Bank.
I was nervous and excited on the bus ride as we approached the checkpoint at the wall. My apprehensions quieted after a calm, well dressed gentleman struck up a conversation with me. He casually explained that this was the first time in five years the Israeli government had granted him a visa to visit friends and family in Jerusalem. I told him that I was on my way to the Palestinian Circus School in Ramallah.
The bus drove through the checkpoint with ease (a different story when coming back into Israel) and I soon found myself on the other side of the looking glass, or rather, the wall. I saw the same beautiful sunset, the same open rolling hills and pink and purple sky, but everything else was different. The road needed repair and had large potholes. On the previous side the wall stood tall, clean and proud. On this side it had layers of graffiti with rubble heaps smoldering at its base. As we continued, we passed the skeletal remains of what once were apartment units.
Our conversation continued while we drove past a nearly abandoned neighborhood and headed the next 20 miles to Ramallah. I showed my new friend my map of Ramallah and pointed to the hotel I had chosen. “Not to worry,” he said. “I will show you the way.” We arrived just after sunset. He walked me to my hotel, offered me his business card and insisted I call if I needed anything. I thanked him for his kindness and went to bed no longer nervous, but still full of anticipation for the day that lay ahead.
The Palestinian Circus School offered me an opportunity to intimately participate in the lives of children who have been arrested for throwing rocks at tanks, and children whose parents have been imprisoned for most of their lives. Like people everywhere they laugh when clowns walk into each other and they are proud when they learn to juggle. The Palestinian bid for statehood in front of the United Nations is at the very least a symbolic gesture. A gesture to ask the world to recognize that the Palestinian children are entitled to pursue their dreams and aspirations equally under the eyes of the international community.
In January 2006, Shadi Zmorrad and Jessica Devlieghere, the founders of P.S.C. were given the opportunity by a Belgian circus school to start the first intensive circus training course for young people living behind the wall. The circus school wanted to offer an intensive three-week workshop in Ramallah. In July 2006, one week before the beginning of the workshop, the Belgian team had to cancel its trip due to the outbreak of the Israeli war in Lebanon.
The Palestinian team was deeply frustrated and disappointed but continued to train. Three Palestinian circus students from Jerusalem immediately offered to work with the school’s first students. They trained the small group on juggling, acrobatics, and trapeze.
After three weeks of training with a group of eight young people, the first performance of the school, “Circus Behind the Wall,” was presented in August 2006 at Ashtar Theater in Ramallah. More than 250 people attended the first show. The positive response from the community confirmed that the dream of a Palestinian circus school was very much alive. The Palestinian Circus School was born!
Since that first performance, P.C.S. has had countless visitors from all over the world come to train, see, share, and take home a little bit of what daily life is like for the young people of Palestine, especially as they build their dreams in an uncertain and sometimes volatile environment.
If you would like more information on the Palestinian Circus School please visit their website www.palcircus.ps or watch this video: www.youtube.com/watch?v=NNF8a7X_I7w
On Sunday, October 23, 2011, in an autopsy performed in the presence of Libyan officials, Dr. Othman el-Zentani confirmed that long-time Libyan leader Muammar Qadhafi had died as a result of a gunshot wound to the head. Qadhafi’s death provided a conclusive end to the civil war that commenced on February 15, 2011 with relatively peaceful protests in the eastern city of Benghazi but quickly escalated with a disproportionate government response and subsequent military intervention authorized by the U.N. Security Council. From the perspective of international law, the episode featured both a uniquely well-administered and organized multilateral response and a more predictable state-level response that nevertheless raised certain contradictions with the multilateral mission. These contradictions now threaten three interrelated decisions any new government in Libya must face: (1) accountability for atrocities committed; (2) balance in the composition and stability of the new government; and (3) the location of Libya’s oil administration.
The U.N. Security Council acted with unusual swiftness and consensus with Resolution 1970 in order to hold Libyan civilian and military authorities accountable for their disproportionate response to the initial protests. Resolution 1970 condemned the heavy-handed government response to the legitimate demonstrations in Benghazi; authorized sanctions on Qadhafi and other key administration officials; established the distinction between civilian and combatant as the touchstone for international action; and, for the first time, unanimously referred such a situation to the International Criminal Court (ICC).
After U.N. Security Council Resolution 1970, but before adoption of Security Council Resolution 1973, which authorized military intervention, France, to the surprise not only of its allies but also to some of its own higher-ranking diplomats, recognized the opposition in the eastern Libyan city of Benghazi as the legitimate representative of the Libyan people. Several states followed France’s lead. As I argue more thoroughly in a forthcoming article (Traditions of Belligerent Recognition: the Libyan Intervention in Historical and Theoretical Context, 27 Am. U. Int’l L. Rev. (forthcoming 2012)), foreign recognition of one competing side to a civil war or the other is neither historically anomalous—nor, under most circumstances—illegal. In this case, however, former regime participants comprised a significant portion of the then-hardly organized or transparent National Transitional Council. Credible human rights groups like Amnesty International and Human Rights Watch have documented potential war crimes committed not only by now-overthrown loyalists but also by opposition forces as well. The U.N. Security Council Resolutions specified the protection of all Libyan civilians as the objective of international action; it will now be more difficult for those who perpetrated crimes on behalf of the Benghazi government to be held accountable.
We should worry about atrocities committed in the Libyan civil war – whether by loyalist or opposition forces – not only for sake of consistency with U.N. Security Council Resolutions but also for international human rights law. The leadership based in Benghazi reflects certain geographical and tribal influences, the careful balancing of which will be critical to legitimacy and stability in any new regime. Libya’s oil extraction facilities and transportation infrastructure, for example, are largely anchored in the eastern part of the country; Qadhafi administered those resources from Tripoli after his 1968 coup d’etat. The new government is now vacillating between leaving the oil administration in Tripoli and transferring all or part of it to Benghazi. There are additional economic and political considerations that the new leaders must balance between the overlapping geographic and tribal centers of influence in the country. Indeed, there are already confirmed reports that rival militias are now engaged in active hostilities. Bringing all parties who have committed war crimes to account will add an important element of fairness to the national experience, the crystallization of which will play an important role in the post-Qadhafi Libya envisioned by U.N. Security Council Resolutions 1970 and 1973.
We welcome and encourage you to check back frequently for new postings.
Postings and submissions are authored primarily by UC Davis Law JILP Board Members; however, we invite international law scholars and faculty to enrich the debate online with relevant articles, updates and contributions to our blog as well.
The official theme for Volume 18 of JILP is:
Human Rights, Transitional Justice and Emerging Democratic Movements in the Middle East & North Africa.
Among the spectrum of topics included in this theme, JILP is exploring seven specific issue areas:
1. Human rights protections and instruments: relationships with the United Nations ("UN"), International Court of Justice ("ICJ"), International Criminal Court ("ICC"), international ad-hoc tribunals and other international bodies;
2. The use of social networking and new technologies in popular democratic movements;
3. Transitional justice in what many commentators are calling the "Arab Spring" or the Revolutionary Era;
4. Comparative constitutional reform;
5. Internal economic development and other trade developments in the Revolutionary Era;
6. Empowered youth leadership in popular democratic movements;
7. and related lessons for U.S. domestic and foreign policy.
Please feel free to contribute submissions to our blog--we look forward to contributions relevant to the theme for Volume 18 of the Journal as detailed above, designed to enliven and engage critical discourse around international law, emerging popular democratic movements, and the role of technology in our globalized world.
We look forward to your contributions!
Joanna Cuevas Ingram
U.C. Davis Journal of International Law and Policy, Vol. 18
First, the ICTY and the ICJ were both established by the United Nations ("UN"); the ICC, however, was created by treaty. The ICTY is an ad hoc or temporary criminal court that was established by the UN Security Council in May of 1993 to deal specifically with the atrocities that took place in Croatia, Bosnia and Herzegovina from 1991-2001. The ICTY is where Ratko Mladicć will be tried.
Second, the ICJ is a permanent civil court that seeks to settle, in accordance with international law, legal disputes submitted to it by States Parties to the UN and to give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.
Third, the ICC is a permanent criminal court that has jurisdiction over 114 countries - not including the United States, China, or Russia - created to end impunity for the perpetrators of some of the most serious International Crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.
I look forward to sharing more of what I learned while in The Hague and more specifically to apply it to what is going on in the MENA region today.
Please feel free to contribute submissions to our blog-- we look forward to contributions relevant to the theme for Volume 18 of the Journal as detailed above, designed to enliven and engage critical discourse around international law, emerging popular democratic movements, and the role of technology in our globalized world.
Kindly submit your posts to me here. We look forward to your contributions!