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Category: International Law (page 1 of 7)

With no carrots on offer, USTR Michael Froman won’t have Crowbar Carla’s influence on Indian IP policy

PrashantReddyTwenty years ago, when India finally signed the Agreement on Trade Related aspects of Intellectual Property Rights (“TRIPS”), it did so after several years of arm-twisting by “Crowbar Carla”, as Carla Hills, the then United States Trade Representative (“USTR”) was called by the media. Ms. Hills earned the moniker “crowbar” because of her diplomatic strategy of “crowbar diplomacy”. American economic might was used as a “crowbar” to pry open the closed economies of America’s trading partners.

Those days, the American economy was in dire straits with an ever-widening trade deficit, a fact attributed to two issues. The first was the common complaint amongst Americans that the rest of the world was indulging in protectionism. The second was that a significant portion of American exports were intellectual property and that a lot of trading partners did not have laws that protected American intellectual property. “Crowbar Carla” was tasked by the then American administration to use trade weapons such as “Super 301” and “Special 301” to exert pressure on trading partners to modify their trading policies under the threat of trade sanctions. Her bigger political goal was to use these trade weapons to prod countries like India to sign TRIPS without too much fuss. To the credit of the American administration, they were aware of the limits of brute political power and sweetened the deal by throwing in the offer of allowing Indians to export more textiles to the U.S. Textiles were and continue to remain one of the most lucrative exports from India earning the country its fair share of foreign currency. Given the dire straits of the Indian economy in 1990-91, it didn’t take much for “Crowbar Carla” to convince the Indians to sign the TRIPS. The Indian delegation which finally signed the deal at Marrakesh was headed by a Union Minister called Pranab Mukherjee – today he is the President of India.

Starting with amendments in 1994 to the Copyright Act to recognise the copyright in software programs, the Indian Parliament embarked on a massive legislative agenda to introduce new intellectual property rights as was required by TRIPS. In 1999 and 2002, the NDA government amended Indian patent law. It also enacted a new law for geographical indications in 1999 and a new Protection of Plant Varieties & Farmer’s Rights Act, 2001. In 2005, it enacted the third amendment to the Patents Act, 1970 and brought back product patents for pharmaceuticals and agrochemicals after a 35-year prohibition. Each one of these new laws and amendments were a result of India signing TRIPS, an act which is directly attributable to Ms. Carla’s diplomatic prowess. With such immense powers to influence international trade policy, the USTR is certainly one of the most powerful bureaucrats in the American establishment. The question is how much has changed in the last decade? Does the incumbent USTR Michael Froman have as much power as “Crowbar Carla”?

Carla Hills (left) was the United States Trade Representative under President George H. W. Bush between 1989 and 1993. Michael Froman has held that office since 2013.

Carla Hills (left) was the United States Trade Representative under President George H. W. Bush between 1989 and 1993. Michael Froman has held that office since 2013.

Going by news reports in the recent past, it would appear that Froman has managed to extract significant concessions from India on its intellectual property policy. Apparently Froman, in recent testimony to American lawmakers has commented that the US is making good progress with the new Modi government on the issue of IP protection. While Froman did not provide details of the actual negotiations, there has been gossip from the civil society organisations in India that the government is going to make serious concessions such as the introduction of a data exclusivity regime for pharmaceuticals apart from a possible drug-patent linkage system. The data exclusivity regime will ensure that generics cannot rely on innovator clinical trial data for a certain timespan in order to get regulatory approvals. This will delay the introduction of generics into the market. The drug-patent linkage system on the other hand is meant to ensure that the drug regulator doesn’t provide regulatory approval to those drugs which are still under patent protection. The Drug Controller General of India (“DCGI”) had planned to introduce such a system few years ago but was forced to backtrack after a serious backlash from the manufacturers of generics. They argued that the DCGI was meant to regulate only safety and efficacy and that he was neither, equipped nor required to enforce patent rights under the law.

The big question is whether the Modi government will actually concede to these demands.

Unlike in the times of “Crowbar Carla”, the current USTR has far fewer trade weapons in his arsenal, thanks to WTO laws which place restrictions on the manner in which the US can impose trade sanctions on trading partners. The favoured weapon of the Americans in the old days was hiking up tariff barriers on the imports from foreign countries but the very rationale of the WTO system is to ensure non-discrimination in tariffs between different trading partners. It is therefore questionable whether the U.S. can get away by imposing tariff barriers on imports from India. The USTR of course can embarrass India by painting a sorry picture of the country’s intellectual property policy in its Annual 301 reports – these reports are handy tools for American lobbyists to prod lawmakers in their countries to ramp up pressure for more action. However unlike the nineties, when India was promised greater access to the American market, the American establishment doesn’t appear to be offering any carrots to the Indian government. So where is the incentive for the Modi government to make concessions to the Americans? Why would Modi risk a serious backlash from the powerful combine of the generic pharmaceutical industry and patient group? Will an administration with a strong nationalist sentiment be seen as caving into American pressure in exchange for nothing? Add to this the fact that India is now a massive importer of American defence and nuclear technology and you wonder why the Modi administration would make any concessions to the Americans.

International Intellectual Property

Froman’s testimony is more likely a result of the Indians agreeing to consider the American demands. This usually means that the bureaucrats in the negotiating group will draw up notes and send them to the relevant ministries for comments. The Department of Industrial Policy and Promotion, the Health Ministry, and the Pharmaceutical Department of the Ministry of Chemicals will all express their opposition. Meanwhile, lobbyists from the generic pharmaceutical industry would have leaked the notes to the media and created a furore. The RSS and the Swadeshi Jagran Manch will register their protest. The bureaucrats in the Indo-US Trade Policy Forum will most likely cite the media furore to express their inability to accept American demands, especially when India gains nothing in return.

The cycle will then repeat itself, until the Americans find a way to actually cause economic damage to India without bombing it.

(Prashant Reddy is a Delhi-based intellectual property lawyer.)

Written by myLaw

Enrica Lexie matter is an opportunity for international law

By Giulia Cabianca

The Enrica Lexia at Kochi. Image above is from Wikimedia Commons and has been published under a Creative Commons Attribution 3.0 Unported Licence.

The Enrica Lexia at Kochi.
Image above is from Wikimedia Commons and has been published under a Creative Commons Attribution 3.0 Unported Licence.

For over a year now, the government of Italy has argued that the trial of Massimiliano Latorre and Salvatore Girone, the Italian marines charged in February of 2012 with the shooting and killing Indian fishermen Jelestine Valentine and Ajesh Binki, must be moved to Italian courts because the incident occurred on the oil tanker Enrica Lexie, an Italian ship in international waters. The matter was taken up by the Kerala High Court and later brought before the Supreme Court of India as Special Leave Petition (Civil) No. 20370/2012. The Supreme Court of India ordered the creation of a special court to reconsider the case.

In March, 2013, the issue became even more complicated when the Italian government announced that Mr. Latorre and Mr. Girone would not return to India to resume their detention after the Supreme Court of India permitted them to visit Italy to vote in the elections. Later, in a dramatic turn of events, prompted by a strong executive and judicial reaction in India, the Italian government returned the marines to New Delhi.

At first glance, the most important challenge in the Enrica Lexie case involves the determination of the applicable law. Jurisdiction would depend on interpretations of Indian law read with the relevant international law of the sea. As discussed in W.P. (C). No. 4542 of 2012 (P) before the Kerala High Court, the fact that the incident occurred 20.5 nautical miles from the coast in what is known as the contiguous zone as defined in Article 33 of the United Nation Convention of the Law Of the Sea (“UNCLOS”) and Section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, establishes Indian jurisdiction. According to Article 111 of the UNCLOS, offences committed in the contiguous zone could be prosecuted pursuant to the right of hot pursuit. Although not directly applicable in the present case, it is possible to argue that the Enrica Lexie could have been ordered to India’s coast on the basis of this right. Having established India’s jurisdiction over the incident, it is possible to argue for the application of the provisions of the Indian Penal Code, 1860 (“IPC”) and the Code of Criminal Procedure, 1973 (“CrPC”) to the present case. Under the IPC, the Italian marines can be prosecuted using Section 2 that deals with the punishment of offences committed within India; Section 3 that deals with the punishment of offences committed beyond, but which may by law, be tried in India and; Section 5 that states that certain laws will not be affected by the provisions of the IPC. These provisions are supported by Section188A of the CrPC, which states that anyone committing a crime on Indian territory can be prosecuted in India. The Kerala High Court had held that the Italian marines could be tried under Section 3 of the IPC for offences committed under Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (“SUA Act”) in the contiguous zone and the exclusive economic zone.

Italy disputes India’s interpretation of extending security rights over the Exclusive Economic Zone and claims that the military benefited from immunity from prosecution of state military personnel who act in the exercise of their functions overseas, under one of the most ancient customs of international law. Italy has also relied on the customary international law principle of par in parem non habet jurisdictionem, which provides that one State cannot have jurisdiction over another State, to argue that only a higher body can decide on this issue.

Further, under Article 6 of the Italian Penal Code, offences committed in Italian territory may be prosecuted by Italy. The Enrica Lexie is considered Italian territory in accordance with the “flag principle”. Italy could also apply Article 9 of Italian Penal Code, which provides that in the case of common offences committed by an Italian national abroad, the state’s duty to prosecute arises when the accused enters Italian territory. Applying these principles to exercise jurisdiction, Italy can use Article 575, the provision dealing with the offence of murder, to prosecute the marines.

This case poses a problem in international law as it does not come within the scope of any one international instrument. It is a titanic challenge to seek an illuminating rule for such a case, from the provisions of the UNCLOS, the SUA Act, the IPC, and the Best Management Practices for Protection against Somalia Based Piracy of the International Maritime Organization that are in any case not mandatory. The UNCLOS mentions “collision or any other incident of navigation” in Article 97 but it is difficult to ascertain whether the Enrica Lexie incident would come within the ambit of that provision.

The application of the UNCLOS is further complicated by Article 310, which allows States to make declarations regarding its application at the time of signing, ratification, or accession to the Convention, without excluding or modifying its legal effects. India, upon ratification of the UNCLOS on June 29, 1995, declared that its understanding of the UNCLOS provisions do not authorise other states to carry out military exercises or manoeuvres involving the use of weapons or explosives in the exclusive economic zone and on the continental shelf without the consent of the coastal state.

When a gap is identified in international law, it is the duty of jurists to interpret and create the law required to fill it. Unfortunately, while attempting to do so, states and their elected representatives often act foolishly. This is especially true of nation states where the relevant law is still in its infancy or where there are many economic interests involved in the disputed issue. The lack of a mutually shared interpretation of international standards between the parties prompted Italy’s action of retaining the “trigger-happy marines”. The situation is complicated by the fact that the Italian government’s action to detain the marines is on the one hand, a violation of an order of the Supreme Court of India but on the other, conforms with the Italian government’s duty to prosecute them since they are on Italian territory. Needless to say, the problem of Enrica Lexie has now escalated from what was once a dispute between citizens of different nationalities, into one that is now an international dispute between States. This however, opens the possibility of the International Court of Justice (“ICJ”) being able to exercise jurisdiction upon the matter.

However, Article 287, Paragraph 1, of the UNCLOS permits States to make declarations specifying the forums for the settlement of disputes. Italy has chosen the International Tribunal for the Law of the Sea and the International Court of Justice without specifying which one has precedence. India, at the time of ratifying the Convention, reserved the right to make the declaration provided for in Article 287 “at the appropriate time”.

This is not the only way the ICJ can acquire jurisdiction over the matter. States can also submit disputes of a legal nature to it. India and Italy have already accepted the ICJ’s competence by signing the Statute of the International Court of Justice in 1974 and 1955 respectively. It is possible therefore, to argue that both parties are correct — India in applying its own laws and Italy in seeking a new bilateral or international agreement to govern such incidents. In SLP Civil No. 20370/2012, Chief Justice of India Altamas Kabir said, “the question of jurisdiction of the Union of India to investigate into the incident and for the courts in India to try the accused may be reconsidered”. The Enrica Lexie case thus provides an opportunity to further develop the law in a situation that has arisen because States have chosen to act as individual entities and not as representatives of the final stakeholders.

 

(This article was written during the author’s internship at the Centre for Law and Policy Research, Bangalore.)

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The Kenyatta dilemma

Uhuru Muyigai Kenyatta’s recent election as President of Kenya has thrown up a dilemma. Mr. Kenyatta is accused of having committed some of the most heinous crimes under international criminal law during the ethnic violence that followed Mwai Kibaki’s re-election as Kenya’s President in 2007.

The 2007 polls were marred by allegations made by Raila Odinga of the Orange Democratic Movement, of electoral malpractice, rigging, and widespread electoral manipulation by Mr. Kibaki’s party. There is consensus in the Kenyan press and among international observers that both parties perpetrated the violence that followed, equally. Mr. Kenyatta, son of Jomo Kenyatta, the first President of Kenya, was the Minister of Finance and the Deputy Prime Minister in Mr. Kibaki’s government. Overall, the post-election violence of 2007 is said to have claimed about 1300 lives. One estimate has placed the number of internally displaced at 600,000.

On March 11, 2013, the Prosecutor for the International Criminal Court (“ICC”), Fatou Bensouda, announced the withdrawal of charges against Francis Muthaura — Kenya’s former chief of civil service. Mr. Muthaura had earlier been charged with murder, deportation, rape, persecution, and other inhumane acts under the Rome Statute of the International Criminal Court (“the Rome Statute”). Ms. Bensouda’s office said that the decision had been prompted by a lack of sufficient evidence due to the non-cooperation of Kenyan authorities. The prosecution of Mr. Kenyatta and five others will continue.

The ICC, established in 2002 at The Hague by the Rome Statute, is the world’s primary judicial court entrusted with the duty to prosecute international crimes such as genocide, war crimes, and crimes against humanity. Despite the many misgivings about its jurisdiction and functioning, the ICC is here to stay and is proving to be a bigger player in the global justice system than ever anticipated.

The ICC first flexed its muscles when it issued warrants against the incumbent Sudanese President Omar Hassan Ahmad al-Bashir in 2009 on five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. Despite international condemnation of the severe and decade-long civil strife in southern Sudan, believed to have the blessings of President al-Bashir’s government machinery, the warrants against him remain unexecuted. Since the ICC is the offspring of a precarious international coalition, the execution of its warrants is greatly dependent on the co-operation of the global community.

In politically volatile Africa, the ICC’s actions assume special significance. In January 2012, the ICC confirmed four charges against Mr. Kenyatta including murder, deportation or forcible transfer, rape, persecution, and other inhumane acts under the Rome Statute. On March 9, 2013, he was declared the winner of the presidential elections in Kenya, with a majority of 50.07 per cent – a slim margin indeed.

Mr. Kenyatta’s prosecution at The Hague throws up a host of questions for Kenya and for the international community. As President, he will also have many other statutory functions requiring his presence in office on a regular basis. At the same time, he — along with the four other accused — must be present at The Hague to undergo trial.

This situation is unique in the history of international criminal justice systems. Apart from Mr. al-Bashir, criminal proceedings have never been initiated in an international forum against an incumbent head-of-state. Even the war trials at Nuremburg after the Second World War tried the former chiefs of various governmental authorities; none of those who stood trial held the highest constitutionally recognised offices in their own countries. Kenyans face the question of whether a person being tried for some of the gravest crimes known to humanity, should hold a government office, let alone the highest office of a country. This will also cause diplomatic hurdles since a large number of countries have stringent measures regarding the recognition, travel, and acknowledgment of authority of persons standing criminal trials.

In response, there is a growing voice of dissidence in Kenya, asking the ICC – and indeed, the international community – to step away from Kenya’s internal polity. This line of argument claims the last four years of governance have been marked by stability and growth. It is a fair statement that the country is certainly turning a corner in the development of its democracy; not only has it formulated a Constitution but the government has abided by it since it came into force in August 2010.

Interestingly, Kenya’s new Constitution recognises that the rights and freedoms contained in the Bill of Rights are not granted by the state but that they belong to all individuals. Article 19 (1) of the Constitution recognises the Bill of Rights to be an integral part of Kenya’s democratic state. Further, at Article 19 (2), the Constitution states that the purpose of such recognition was the preservation of the dignity of individuals and communities. It is to be seen how Kenya reconciles its highest law with the precarious situation of its President-elect. The general feeling around the country is forward-looking and young Kenyans are keen to establish their identity as citizens of a functioning democracy.

The Rome Statute is flexible enough to recognise such a situation and stipulates that when a country has the law and the will to try its citizens for crimes defined in the Rome Statute, it is preferable to have the trial conducted by the country’s judicial system. Kenya has a constitutionally established judiciary. However, it is a matter of speculation whether the country is willing to try its President-elect for some of the gravest crimes known to humanity.

(Suhasini Rao is part of the faculty at myLaw.net)

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A brief history of the rules of war

By Kirthi Jayakumar

 

Grotius, Montesquieu, and Rousseau Images above are from Wikimedia Commons. The image on the left has been published under a Creative Commons Attribution 2.0 Generic License.

Grotius, Montesquieu, and Rousseau
Images above are from Wikimedia Commons. The image on the left has been published under a Creative Commons Attribution 2.0 Generic License.

In the Mahabharata, the eighteen-day war at Kurukshetra between groups of cousins to succeed to the throne of Hastinapura had rules of engagement. Fighting was not to begin before sunrise and had to end exactly at sunset. More than one warrior could not attack a single opponent and a warrior was not allowed to kill an opponent if the latter had surrendered. A surrendered warrior would become a prisoner of war and would then have certain protections. Unarmed or unconscious warriors, women, and people who were not taking part in the war were not to be killed or injured. Unfair warfare was prohibited. Battles were fought with maces, bows and arrows, and swords and there were rules specific to each weapon.

In the Hebrew Bible, soldiers were prohibited from destroying fruit-bearing trees in hostile lands, breaking vessels, tearing clothing, wrecking that which was built up, stopping fountains, or wasting food in a destructive manner. Even the needless killing of animals or poisoning water meant for livestock was forbidden. Besieging a city was acceptable only if whoever wished to flee had a path to do so.

The ideas of Grotius

The regulation of warfare through rules is not a modern idea. The first instance of “legal codification” (of sorts) however, came about through the Dutch philosopher, Hugo Grotius. De Jure Belli Ac Pacis (On the Laws of War and Peace), his immensely influential work from 1625, argued that there was a system of natural laws independent of any individual state’s legal system that should prevail even during hostilities.

Several scholars built upon Grotius’ ideas during the next two centuries and argued against the violations of basic rights during war. Montesquieu made a case against the killing of prisoners of war and Rousseau said prisoners of war had a right to receive humane treatment and to be freed after hostilities ended, instead of being enslaved. Many of these ideals became a significant part of treaties and friendship pacts between nations after wars, and were then carried forth into manuals that were issued to soldiers.

The revolution in warfare and the birth of the Geneva Conventions

However, the industrial revolution brought with it innovations in weapons. This led to “total war”, where besides incomparable battlefield suffering, there was a mandatory exaction of unconditional surrender from the defeated party. Combat was redefined and was deadlier than before. During the Crimean War fought from 1853 to 1856, with Russia on the one side and England, France, Turkey, and Sardinia on the other, the death toll was one lakh mostly from epidemics that raged during the war. The Crimean war saw the use of rifled muskets, among other percussion guns and rifles. Between 1861 and 1865, the American Civil War resulted in the death of six lakh soldiers.

Henry Dunant, a gentleman of Geneva.

Henry Dunant, a gentleman of Geneva.

In 1863, five men recognised the devastating effects of war on people and countries and met at Geneva. One of them was Henry Dunant, a local. He had authored and published A Souvenir Solferino, a book that made the case for improved care for soldiers who were wounded during war. His experiences with war persuaded him to seek the establishment of a permanent relief agency for humanitarian aid in times of war and the adoption of an inter-governmental treaty recognising the neutrality of the agency and allowing it to provide aid in war zones. In 1864, the International Committee of the Red Cross (“ICRC”) was born. Soon after, the committee brought together the governments of twelve European nations in Geneva and persuaded governments across the world to adopt a treaty that would mandate armies to care for wounded soldiers irrespective of what side they were on. This was the first Geneva Convention, that is, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field and was signed on August 22, 1864. The treaty mandated that all ambulances and hospitals were to be regarded as neutral; that people who worked as hospital workers and patients they tended to were not to be molested; that wounded or sick soldiers would receive medical care regardless of their loyalties; and that the Red Cross could freely travel through combat zones to aid the wounded. This Convention marked the first of several treaties that would go on to establish laws whose violations would be deemed war crimes. Over the next fifty years, the ICRC began active field operations and established national societies.

The last czar of Russia and his foreign minister.

The last tsar of Russia and his foreign minister.

On August 29, 1899, the erstwhile Russian Tsar, Nicholas the Second, with his foreign minister, Count Mikhail Nikolayevich Muravyov, proposed the first in a series of conferences. It took place at The Hague on May 18, 1899, the Tsar’s birthday. The conference officially took place on May 18, 1899, the birthday of the Tsar. It resulted in the passage of the Hague Convention of 1899, which sought to ban the use of certain types of modern technology in war, such as bombing from the air, chemical warfare, and hollow point bullets. Meanwhile, the 1864 Geneva Convention was soon adapted to include warfare at sea, leading to the adoption of the second treaty, namely, the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies at Sea, 1906.

The second Hague Conference was held between June 15 and October 18, 1907. While most historians consider it a failure, a few major decisions emerged. Convened at the suggestion of American President Theodore Roosevelt, war between Russia and Japan postponed the conference. It sought to expand upon the text of the original Hague Convention, seeking modification of some parts and additions to others. The focus was on naval warfare. England tried to ensure that there would be an imposition of limitations on certain armaments, but the move was defeated by the other governments present at the meeting – especially Germany, which appeared wary of a British attempt to stop the growth of the German naval fleet. Proposals for compulsory arbitration were also opposed by Germany, leading to the adoption of the alternative: enlarged machinery for voluntary arbitration. The conference finally established conventions regulating the collection of debts, the rules of war, and the rights and obligations of neutrals vis-a-vis war. The agreement entered into force on January 26, 1910.

While there were gaps that needed attention, the Geneva Conventions and the Hague Conventions came together to form a comprehensive body of wartime rules. They were the most authoritative rules governing conduct in war towards opponent soldiers, civilians, hospital assistants, and the wounded. Put together, these treaties required that prisoners receive decent food, shelter, and clothing; that guerrillas and other citizen-soldiers obey the same laws as official military personnel; that combatants respect institutions devoted to religion, charity, education, art, and science; that surrendering enemies not be killed or injured; that defenceless towns or buildings not be attacked; and that soldiers not pillage or confiscate property. The use of some weapons was also restricted.

The growth of international humanitarian law through the two World Wars

With the advent of the First World War, new methods of warfare that included trench warfare and the use of poison gas caused a very high death toll and exhibited the inadequacy of the extant rules. In 1925, the Geneva Protocol banning the use of poison gas and biological weapons was passed. At the end of the war, the Kellogg-Briand Pact of 1928 was signed by most of the world’s major powers. Leading to the establishment of the League of Nations, the pact witnessed the renunciation of war as a tool of policy among the leaders of the warring factions. The Geneva Convention relative to the Treatment of Prisoners of War was concluded in July of the next year and entered into effect on June 19, 1931. It sought to improve rules on the treatment of prisoners of war and the wounded. However, the state of unstable peace was short-lived. With Germany violating international law, the Second World War began and brought with it, untold savagery and brutality.

At the end of the Second World War, the United Nations was established and the Universal Declaration of Human Rights was adopted. In the same year, a separate convention outlawed genocide. The trials at Nuremberg also revealed the grave situation that prevailed on every war front. In a bid to avert or at least streamline conflict, a series of conferences were held in 1949. They reaffirmed, expanded, and updated the three prior Geneva Conventions. A fourth was added — the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949. The Geneva Conventions were also made applicable at times of war and armed conflict, to the territories of all governments that had ratified its terms.

The four conventions contain two common articles — Articles 2 and 3. Article 2 explains that the Geneva Conventions applies to all cases of international conflict, where at least one of the warring nations has ratified the Conventions. It applies to all cases of declared war between signatory nations and all cases of armed conflict between two or more signatory nations even in the absence of a declaration of war. It also applies to a signatory nation even if the opposing nation is not a signatory if the opposing nation “accepts and applies the provisions” of the Conventions. Article 3 relates to non-international armed conflict, and states that certain basic rules of war applied to armed conflicts that were not of an international character, but contained within the boundaries of a single country.

Humanitarian law after the World Wars

Although the Geneva Conventions were comprehensive in their own right, the changing nature of conflict in the aftermath of the Cold War revealed the need for a more dynamic legal system. After the Cold War, most armed conflicts were internal wars, or civil wars. The development of technology also lent some asymmetry to armed conflict as there was a higher toll of dead civilians. In 1977, considering the need to provide civilian persons and objects sufficient protections during combat, two Additional Protocols were adopted. They extended the terms of the 1949 Conventions with additional protections.

Protocol I affirmed the original Geneva Conventions of 1949 but added clarifications and new provisions that accommodated developments in warfare since the Second World War. It outlawed indiscriminate attacks on civilians, the destruction of means of survival, and attacks on dams, dikes, nuclear generating stations, and places of worship. It provided for separate protection for women, children, and civilian medical personnel, and measures of protection for journalists. Besides this, it prohibited the conscription of children below fifteen into armed forces, clarified the military status of members of the guerrilla forces, and banned weapons causing superfluous injury or unnecessary suffering and warfare capable of causing widespread, long-term, and severe damage to the natural environment. Protocol II amended the Geneva Convention to provide better protection for victims of internal armed conflicts that take place within the borders of a single country. However, these laws have a limited scope of application because of respect for sovereignty of the member countries.

Despite the fact that the nature of war has changed considerably since the creation of the Geneva Conventions in 1949, they are still considered significant, and constitute the body of rules that are commonly called International humanitarian law. The treaties found application in recent armed conflicts. As it stands however, the lack of an international court with enough power to enforce the laws of war is a huge drawback. Furthermore, their non-implementation notwithstanding, these legal provisions are not enough. As war continues to evolve and non-state actors also participate, there has been a blurring of lines between combatants and civilians. The birth of drone attacks, the participation of enablers (people, corporations, and governments that make war possible by abetment through monetary, strategic, or infrastructural aid), and the involvement of non-state actors are concerns that need to be addressed.

 

Sources

Bernadotte E. Schmitt, “The Diplomatic Preliminaries of the Crimean War”, American Historical Review, Vol. 25, No. 1 (Oct., 1919), pp. 36–67.

Dunant, Henry, A Memory of Solferino; Ronald Roxburgh, International Law: A Treatise, 1920, p.707; Andre Durand, History of the International Committee of the Red Cross: From Sarajevo to Hiroshima, (Geneva: ICRC, 1984), p. 147.

Francios Bugnion, “The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium”, International Affairs, pp. 41–51.

Giri Deshingkar, “Strategic Thinking in Ancient Indiaand China: Kautilya and Sunzi”.

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

Hudson, Manley O, “Present Status of the Hague Conventions of 1899 and 1907”, American Journal of International Law, 25, pp. 114–117.

James C. Bradford, A companion to American military history, 2010, Vol. 1, p. 100.

Jean Jacques Rousseau, The Social Contract or Principles of Political Right, Chapters 1 to 5.

Mark W. Janis, Religion and International Law, 1999, p. 121.

Michael J. Broyde, Fighting the War and the Peace: Battlefield Ethics, Peace Talks, Treaties, and Pacifism in the Jewish Tradition, 1998, p. 1.

Montesquieu, The Spirit of Laws: Book XV.

Walther Schücking, The international union of the Hague Conferences, Clarendon Press, 1918, p. 10.

William Abresch, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya”, European Journal of International Law, 16(4).

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“The rule of law in international society”

Sir Christopher Greenwood is a judge of the International Court of Justice. Before being elected to that position in 2008, he was a professor of international law at the London School of Economics and a barrister. On January 16, 2013, he spoke in New Delhi at the First Milon Kumar Banerji Lecture on “The Rule of Law in International Society”. Chief Justice of India Altamas Kabir, Judge Dalveer Bhandari of the International Court of Justice, and Sonia Gandhi, the chairperson of the United Progressive Alliance, were present at the occasion. Milon Banerji, who passed away in 2010, was Attorney General of India for two terms between 1992 and 1996 and between 2004 and 2009.

Sir Christopher Greenwood’s legal opinion, “The Legality of Using Force Against Iraq”, had been placed before the United Kingdom’s Select Committee on Foreign Affairs in October 2002, and was used by the government of the United Kingdom to justify the invasion of Iraq.

Edited extracts from the transcript of the lecture:

Sir Christopher Greenwood said that Mr. Milon Banerji had a “long and distinguished commitment to the rule of law” and that it was fitting that it was the subject on which he would speak. Although most of his career was dedicated to rule of law within the State, Sir Greenwood noted that Mr. Banerji was a very accomplished international lawyer and proud of the fact that he had studied International Law at Cambridge. Mr. Banerji graduated under Sir Hersch Lauterpacht and Sir Robert Jennings (both of whom later became Judges at the International Court of Justice).

From left to right: Mr. Gaurab Banerji, Additional Solicitor General and son of Mr. Milon Kumar Banerji, Sir Christopher Greenwood, and Ms. Sonia Gandhi. Photograph by Aju John.

From left to right: Mr. Gaurab Banerji, Additional Solicitor General and son of Mr. Milon Kumar Banerji, Sir Christopher Greenwood, and Ms. Sonia Gandhi.
Photograph by Aju John.

Dicey, Bingham, and the rule of law

Sir Greenwood said that although rule of law was a concept all lawyers talked about, it was still not a clear one. “Indeed one American writer very skeptically said that this was simply a piece of nonsense that the chattering classes discuss at dinner parties.” He said that it was central to any democracy. “The idea of democracy without the rule of law is I think almost as absurd as the idea of democracy without popular participation.”

Lawyers united by the common law tradition inevitably go back to the writings of Dicey in the late 1900s. For him, the rule of law had three elements — the absolute supremacy of regular law as opposed to the influence of arbitrary power; secondly, the concept of equality before the law for the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and lastly, the idea that the law of the Constitution was a consequence of the rights of individuals, as defined and enforced by the courts.

“Now, that was very much the writings of an English lawyer and an English lawyer of the Victorian era. Today, I think most of us would be sceptical about the third element of Dicey’s definition, that constitutions are simply the assemblage of the judgments of the courts in cases between the benches. We would, I think, today regard a written constitution as having a vastly more important part to play in rule of law.”

“Dicey’s text is also not an easy one to transplant from the context in which he was writing — the constitutional framework of Great Britain, to the international society that we know today. Much of what he wrote was about defending the rights of the individuals against the much more powerful States, although if he thought the Victorian state powerful, what he would think of the States today, I hesitate to think.”

International law in contrast, he said, lacked strong central institutions. “There is no real equivalent in international society of the relationship between the State and citizen. If you look at the resources of the more powerful States — whether you see those resources in economic, military, or political terms — they are vastly greater than those of the central institutions (the United Nations, the Security Council, the General Assembly, and the International Court of Justice), which dispose of nothing like the power that the institutions of States such as India, United States of America, or the United Kingdom [have].”

He also said that even the most unequal societies did not have the disparity seen in international society. “There are 193 States. The largest of those in population terms, India and China, have a population of more than a 100,000 times the size of that of now the smallest member of the United Nation. In terms of territory, the largest State, Russia, is eight-and-a-half million times the size of the territory of the smallest U.N. member, Monaco. If you look at economics, the United States disposes of roughly twenty-five per cent of the world’s Gross Domestic Product and it is arguably a bigger economy than that of the next four largest economies put together. Or if you look at military might, the United States’ military budget… In Victorian times, when Dicey was writing, the British liked to regard themselves as the top military nation, or at least the top naval power, and they worked towards what was known as the Two Power Rule: that the Royal Navy should be greater than the combined strength of next two biggest naval powers, in case Britain had to fight the two of them together.Today, the United States’ defence budget is greater than the defence budgets of the next twenty largest military economies.”

None of these however, meant that the rule of law was not important in international society as it is in a domestic society. “Quite the contrary, I believe that the rule of law is, if anything, even more important to us as citizens of the world than it is to each of us, the citizens of our own country. But it does suggest that Dicey’s traditional text requires some modification if it is to be made to work properly today.”

In his book, The Rule of Law, published a few months before his untimely death, the late Lord Bingham suggested a number of alterations. He suggested, for example, that the accessibility of law should be regarded as an important feature. “Unless the law was published in a form readily accessible to people, and in a language they could understand, you could not have a genuine rule of law. That the law has to be clear, that there have to be limits laid down by the law on the exercise of power, including some form of a doctrine of abuse of rights, that there have to be not merely courts, but courts to which the subjects of the legal system have ready access and courts which apply concepts of due process in the way in which they dealt with disputes that came before them.” All these characteristics, Sir Greenwood said, helped distinguish “rule by law” from “rule of law”.

Making war subject to law

Sir Greenwood remarked that Mr. Banerji had been born a few months after the Kellogg-Briand Pact of 1928, the first serious attempt to make going to war subject to legal control. “That I must suggest is critical because war is the antithesis of the rule of law. It may sometimes happen, it may sometimes be necessary and it is governed by rules of conduct that regulates such matters of treatment of prisoners of war, the prohibition on the mutilation of the wounded or dead, the proper and humane treatment of civilian population but nevertheless war is inherently destructive.” It was the ultimate exercise of power. The idea that the exercise of power was subject to legal restraint and not simply a matter of State policy is an essential breakthrough in establishing the rule of law in international society.

“The principles laid down by that pact were the basis for the conviction at Nuremberg and Tokyo, of the German and Japanese leadership, for the crime of waging aggressive war and they were picked up as principles in Article 2, Paragraph 4 of the Charter of the United Nations, which prohibits the use of force for purposes of territorial acquisition against the sovereignty and independence of States or any other manner inconsistent with principles of the United Nations.

“It is picked up also in Chapter 7 of United Nations Charter which took the first step towards centralising the right to use force. In any society the persons have a right to defend themselves against attack but if one relies solely on the right of self-defence, law and order is fatally undermined. Self-defence has to be a transitional step until the police arrives. What I always remember about the rule of law is being told by an officer who served in the U.N. peacekeeping operations around the globe. When we talked about the rule of law he said “I will tell you what the rule of law means in places where I have worked. It means that when you hear your door being broken down at three o’ clock in the morning, and you telephone the police, you know that they will come, whatever religious, ethnic, or national group you belong to, and wherever in that country you happen to live in. I thought that was a very powerful reminder as we become theoretical about the rule of law about what it actually means on the ground.

International society however, has no police. “The nearest it comes to that is the power of the Security Council to take action to respond to an unlawful use of force. And indeed, to authorise the use of force itself, in the international interest.”

Trade and international law

Sir Greenwood also noted that the notion of trade as a matter of the sovereign policy of each state had changed dramatically during Mr. Banerji’s lifetime. “With the introduction of the GATT after the Second World War, and later the World Trade Organization, we have — I think — taken an important step, still far from complete but important nonetheless, towards introducing some form of legal regulation. And in the trade area, I think you can see the advantage of that in the way the world has responded to this financial crisis as opposed to the way it responded in 1929-30. There has been no equivalent of the rush to impose tariffs or the rush to impose non-tariff trade barriers.”

Increasing equality in international society

The third enormous difference was in relation to the principle of equality. “The British Empire was, in 1929, at its largest expanse ever, [and] started to contract only a few years later. The French Empire, similarly, had never been larger in 1928.” Sir Greenwood said that the world was a different place today. “The principle of self-determination, first mentioned by Woodrow Wilson in his famous Nineteen Points at the time of the Covenant of the League of Nations, and then picked up in the Charter of the United Nations, meant that within a very short time indeed, the colonial empires simply disappeared.”

More democratic law making

Lastly, he said that the process of law making in international law had undergone remarkable changes. “Now international law, of course, is made in a curious way — there is no Parliament, no legislature the kind we are used to in a domestic setup. Instead, law is developed either by treaties, which states can choose to belong to or not to adhere to if they so wish, and by the […] of customary international law, which I occasionally infuriate my French colleagues by saying that it is international law’s equivalent of the common law — they have never found that analogy terribly attractive.” Today, the process of treaty making is vastly more democratic. “Not only will a multilateral conference have some 190 states turning up, rather than just a handful, it is today inconceivable that you could have something as patronising as the statement that appears in a major international agreement in 1856, that Turkey is admitted to the family of civilised nations. It is difficult to conceive of something quite as absurd being said today; of course, Turkey is a member of the family of civilised nations, but it didn’t need the imprimatur of France, Britain, Austria and the Russian Empire to tell us that.” Further, recent treaty making has involved civil society. “And another tribute to the Covenant of the League of Nations — one of its unsung successes — was that the Covenant provided that there should be no more secret treaties; a treaty would be enforced only if it was registered with the League of Nations. That principle has survived today — a treaty must be registered with the United Nations to be enforceable with the ICJ.” The clarity of treaties has also improved.

“And as for customary international law, the process of making custom can be very opaque indeed. I’m sure Justice Bhandari would agree with me that it certainly seems very opaque when we look at its products in cases before us in the ICJ. But customary law, based on the practice of states over a period of time, supported by the almost undefinable concept of opinio juris, has become more democratic for instance. You can no longer get away and say ‘oh, this is customary international law, because we can find it referred to in the publications on state practice of the United Kingdom and the United States and France’ – I have picked them because they are the first countries to publish their practice. Nowadays, you would have to cast your net a great deal wider than that. And interestingly, in a recent case, the ICJ did look at the case law of a large number of countries as a way of creating the international customary law on sovereign immunity. We also have the quasi-legislative practice of the Security Council of the United Nations and in some circumstances, the United Nations General Assembly.”

International courts

The Peace Palace at The Hague, home of the International Court of Justice. Image above is from Wikimedia Commons.

The Peace Palace at The Hague, home of the International Court of Justice.
Image above is from Wikimedia Commons.

Sir Greenwood then turned to the traditional enforcement of international law. For Dicey and Lord Bingham, law had to be capable of being interpreted, applied, and enforced by courts to which there was ready access. He noted that sixty-seven States including India had made declarations that gave consent to litigate before the International Court of Justice with another State that had made a similar declaration.

“But that is sixty-seven out of 193, a third of the total. Whereas, before the Second World War, forty-two out of fifty-five states had, at some stage, accepted the compulsory jurisdiction of the Permanent Court of International Justice. Moreover, if you look at the states that were not parties, they were a very important and powerful group. [Of] the five permanent members of the Security Council, only the United Kingdom had a declaration accepting the compulsory jurisdiction of the international court. France and the USA withdrew theirs many years ago. China and Russian Federation never had one.

“If you go back to the time when I was studying for my Master’s Degree in Cambridge, the ICJ was very much in the doldrums. It had only one case before it, the Continental Shelf dispute between Greece and Turkey. And in 1978, it decided that it did not have jurisdiction to hear that case. I am happy to say that it took that decision after I had sat my exams, rather than before that.”

“But if the ICJ was doing nothing in 1977, none of the other courts or tribunals were doing anything either. There had been one inter-state arbitration of heavy importance of that period: the Beagle Channel case between Argentina and Chile, which awarded almost everything to Chile, as a result of which Argentina refused to comply with the award, and the two countries went to the brink of war, only by agreeing to agree to refer the matter to conciliation by His Holiness the Pope, who very kindly offered conciliatory services, only to discover after the offer had been accepted that it had been 140 years since the last Papal Meeting and nobody in the Vatican had any idea how to conduct a mediation of this kind. It was only a mediation of the Pope that put an end to that dispute.

“The idea of international criminal law was simply unknown in 1977. There were no international criminal courts or tribunals. Today the picture could not be more different. In the last decade, the ICJ has been busier than either the International Court or the pre-war Permanent Court could ever be. Justice Bhandari and I are both grateful for the fact that the last year was the first year in five years when no new case was started, which gives us a chance to catch up with some of the ones that are pending.”

Sir Greenwood also said investment treaty arbitration was on the upswing. “The number of cases and their importance seems to double almost every year.”

He also expressed happiness about the fact that in the years that he had been involved with the ICJ, there had been cases and judges from every continent. “And it is of particular pleasure to me that Justice Bhandari has just joined us as the first judge elected from India since Chief Justice Pathak in the early 1990s, and he follows in the footsteps of Sir Benegal Rau and Judge Nagendra Singh, who have all played such an important part in international affairs. Ninety of the states of the world, and nearly half, have been parties to cases before the ICJ, and forty-three states took part in a recent set of advisory proceedings on the declaration of independence by Kosovo. Some critical problems still remain — the principle of voluntary jurisdiction means that the Court may be able to decide a case between two states and yet be completely unable to deal with exactly the same set of facts raised involving a third state. We had a recent example of that in that the Democratic Republic of Congo was able to take Uganda before the Court in relation to the fight in the Great Lakes region, and to win a judgment. But when it tried to sue Rwanda on exactly the same set of facts, it failed on grounds of jurisdiction. Reason: Uganda has accepted the jurisdiction of the Court, Rwanda does not. Now I should add a disclaimer: I was counsel for Rwanda in those proceedings, and whether the DRC would be successful on merits if the case reached that stage, I would be unable to say as that would be impossible to predict. But it is the case undoubtedly that the DRC was able to win the case against Uganda but it didn’t have the chance to do that against another defendant.”

Sir Greenwood also raised the question of how the ICJ can control the power of central institutions in international society — an issue raised by Libya in the Lockerbie case against the United Kingdom and the United States. The case was however settled and the matter never decided. The European Court of Justice recently decided the question of whether European Community institutions could apply sanctions against individuals without the individuals having an opportunity to argue. This has led to the creation of the office of the International Ombudsman to look at individual sanctions. “And in a recent case, the ICJ was faced with a request for an advisory opinion in a matter involving a female member of staff in an international organisation. That member of staff won a significant award […] in front of an administrative tribunal. But the organisation had the right to refer the matter to ICJ for an opinion; the individual did not. The organisation had a clear […] and argued the matter; the individual could only submit documentary arguments through the organisation that is its opponent in the case. Now nearly fifty years ago, the ICJ said that that was nevertheless acceptable, and it could be reconciled with the concept of equality, because the Court made sure that the individual did, in fact, receive a full hearing. When we came to revisit that, I tendered an opinion to the Opinion of the Court, that though reluctantly, I could accept that we should deal with this case, I thought that these types of proceedings would simply be incompatible with the modern concept of equality and the rule of law, and something else had to be fashioned in their place.”

Within States and among States

Sir Greenwood said that the rule of law had developed in even more important affairs — in the relationship between the state and the individual. “That is obviously the heart of the Dicean concept of the rule of law within the State. But the transformation of the last sixty years has been that it has become the all-important feature of the international rule of law. The Universal Declaration of Human Rights, for example, emphasises the rule of law as an important international consideration. If states are allowed to treat their citizens in an appalling and literally atrocious way, that is not reconcilable with the international rule of law any more than it is reconcilable with the rule of law internally. And core human rights, such as freedom from torture, which is the heart of the case about Pinochet, and was recently the subject of the Belgium and Senegal judgments given by the ICJ, freedom from arbitrary detention, guarantees of due process — these are no longer just a matter internal to States.”

Self-determination, he argued, cannot merely be regarded as “one man, one vote, one time”. Self-determination is a continuing right, a right to participation in the democratic process. The European Court of Human Rights, which has over 100,000 cases pending before it, has emphasised on numerous occasions that the rule of law was a European concept as well as a national one. “I would add to that: it is an international concept as well as European. You see this in the Declaration made for the Millennium by all the U.N. member states at the Heads of States and Governments Conference, where they resolved, and I quote, ‘To strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties’.

He concluded that the rule of law in international society could not be separated from the rule of law within each State. If there is no rule of law within a State, the temptation for that government to feel it and disregard international law whenever it considers that its interests so require, will become irresistible. Conversely, disregard for the rule of law international law internationally will almost invariably undermine the respect for the rule of law within a state. “There is a fallacy which I feel is particularly prevalent in strong democracies with a strong rule of law tradition of their own, to imagine that because they understand the rule of law internally, what their law provides and what they do within their circles, is somehow superior to international law. And if the two come into conflict, it is international law that must yield. But I would suggest to you that a cavalier attitude of that kind towards the rule of law at the international [level] means that in the end, you undermine the rule of law for everyone everywhere, undermine it for India as a country. For me, respect for the rule of law within a state is fundamental for preserving peace, for improving the lot of each and everyone.”

 

(Aju John is part of the faculty at myLaw.net)

Written by myLaw

Access to learning materials at stake

Lawrence Liang Image courtesy Mr. Liang.

Lawrence Liang
Image courtesy Mr. Liang.

In a recent suit, Oxford University Press, Cambridge University Press, and Francis and Taylor – all publishers of academic textbooks and journals, have accused Delhi University (“DU”) and Rameshwari Photocopy Service (“Rameshwari”), an enterprise near the Delhi School of Economics that makes photocopies, of infringement of copyright in relation to the practice of photocopying portions of academic publications for the creation of “course packs” for students of the university. Following that, the Delhi High Court ordered the appointment of a local commissioner to inspect the Rameshwari premises to make an inventory of the alleged infringing material.

In a conversation with us, Lawrence Liang, a founding member of the Alternative Law Forum in Bangalore, and an expert in intellectual property law, said that the case was very important because access to learning materials and the status of photocopying for students across India were at stake. Mr. Liang, who is advising Rameshwari, also said that there were plans of filing an intervention petition on behalf of the students. “Under the CPC, you can argue that if they are not the necessary parties to the case, they are proper parties, because the impact of this case will be on students across the country. I think it’s a very vital case that sets out a test for universities across the country. Now, this is about DU. Now, in DU, IITs etcetera, you may even argue that some of the students may be able to afford to buy books, but a large majority of the students across the country in India will be impacted by the outcome of this case.”

The plaintiffs have argued that they are the sole owners of the rights in various academic materials that have been reproduced either in whole or in part. These materials, they have argued using Section 14(a)(i) and (ii) of the Indian Copyright Act, 1957 (“the Act”), which describes the exclusive rights granted to the owners of literary works, may not be reproduced, stored, or transmitted in any form or by any means, without their prior permission or as expressly permitted by law. “This leads to the question of what is permitted by law”, said Mr. Liang.

The petitioner tried to have a commissioner appointed who conducted a raid on Rameshwari and seized a lot of the “course packs”. “Summons was issued, injunction was not granted, and summons was issued for hearing and now it’s posted for the twenty-sixth of this month. They asked for an injunction against reproduction, and they asked for damages to the tune of Rupees sixty lakhs. The assumption of the damages is that every photocopied article is a lost sale, which is of course a very, very dubious assumption, but that’s the background.”

Major issues and questions

Mr. Liang said that while India’s national copyright laws had to comply with the Berne Convention and the TRIPS Agreement, it was important to understand the nature of the exceptions and flexibilities available under these instruments.

“The background for me, which is an important one, is that in 1960, at a time when a number of countries were newly independent and post-colonial, the big challenge was the access to learning materials. You didn’t have a strong indigenous publishing industry as you have today. So, most of the textbooks and the high costs of these texts was putting a very heavy pressure on education. So at that point of time, there was an attempt by developing countries to try to negotiate and have a treaty.” This was the Stockholm Protocol, 1967 and India’s position during its negotiation was that the very high production costs of academic, scientific, and technical books was standing in the way of their dissemination and distribution in developing countries. Most of the developed countries – the U.K. in particular followed by the U.S. – rejected this, because they were exporters of books. Mr. Liang said that Article 8 of the TRIPS Agreement, which says that Member States may, in formulating or amending their laws, adopt measures necessary for the promotion of public interest in sectors of vital importance to their socio-economic and technological development, had to be read in this context.

“Every single report on development in India, every single speech given by every single Prime Minister, […] from 1950 to now, will constantly remind us that education is the key area of concern in India as far as development is concerned.” He said that it was a crucial concern in the ‘promotion of public interest in sectors of vital importance’. Globally too, there had been recognition that the exceptions and limitations to copyright law are among the crucial indicia that allow for addressing developmental needs against the protection of the rights of copyright owners. The U.K. Commission on Intellectual Property has said that developing countries should maintain the broadest exception for education and research.

Fair use, fair dealing, and the teaching exception

Mr. Liang said that it was important to distinguish between the generic fair dealing or fair use provisions and the “three-step test” in the TRIPS Agreement. In addition to these two regimes, there is a specific teaching exception in the Berne Convention.

The title of Section 52 of the Act is “Certain acts not to be infringement of copyright” and it is commonly assumed that it provides for the fair dealing exception in India. “[But] if you look at section 52(1)(a), it says “the following acts shall not constitute an infringement of copyright, namely, a fair dealing with a literary, dramatic, musical or artistic work”. Section 52(1)(a) uses the phrase “fair dealing”. Section 52(1)(h) says reproduction of any work, in the course of instruction, by a teacher or a pupil and does not use the term “fair dealing”.

“So how are we to interpret this? I would argue that one has to distinguish between the requirements of Section 52(1)(a)(h) in terms of fair dealing and its compliance with the three-step test, and the general teaching exception. Now, both of these are related to each other, but they are also distinct, because to my mind, the teaching exception is the broader exception.”

Mr. Liang explained that unlike Section 52(1)(a)(i), Section 52(1)(h) was not restricted to private use. “The question then is, what is in the course of instruction, and is instruction limited to a narrow understanding of instruction, or is it to include also, mandatory syllabus that has been prescribed for a course, for which one necessarily has reproduce either portions of the book or the entire book itself?”

Cost factors in India

Students outside a photocopying enterprise in Delhi University Photograph by Shilpi Boylla

Students outside a photocopying enterprise in Delhi University
Photograph by Shilpi Boylla

“And in some cases, reproduction of the entire book is not limited. There is no quantitative restriction that is placed on it (reproduction). The reasons for this is that if you look at the actual courses, the DU courses, it’s incredible – to give you an example, the cost for an M.A. sociological theory book – there are twenty that are prescribed. Of those, two are unavailable, they’re out of print, they’re not available in India. For the remaining eighteen books, for a large number of them, there are no Indian editions of the book available. And the costs range anywhere between Rs. 1,500, to an exorbitant Rs. 59,000 (in the case of one particular book). Now, Rs. 59,000 may be the upper exception in the sense that most books will not be Rs. 59,000, but a lot of them are in the range of Rs. 1,800 to Rs. 3,000, so that if you add up the cost of just the sociological theory books, the twenty books or eighteen books prescribed, it amounts to about Rs. 25,000 to Rs. 35,000. Assuming that one were not to take into account, this particular book, which is called ‘Family, Critical Concepts and Sociology’, is it the assumption that every student will buy each copy of the books and spend Rs. 25,000 to 35,000 for one particular subject? […] Publishers may not be happy with the scope of the exceptions that are granted, but what is the choice that they have? The choice is very simple – to change the law. Just like any other person would do. You can’t use a case to try in a way to limit the exceptions that have been allowed.”

The economy of academic publishing

He also said the larger economy of academic publishing itself was important to the matter. “The petitions speak in the name of authors, and authorial rights. However, take a deeper look at academic publications, and you’ll get a very stark, bare truth. Because of the people whose rights have allegedly been infringed, we have written to a number of them asking them to write to Cambridge and Oxford, and all of them have been very happy to write to them, to basically make an argument saying, ‘Not in our name’. These are some of the leading social science and political theorists in India, all of whom have argued that [we as] academics believe that this a right that students fairly have, and the petition has been filed saying that the copyright in our books have been infringed. So, there’s a very clear distinction between the regime of publishers and the regime of authors.”

Mr. Liang said that the political economy of academic publishing was such that while pricing a book, they would seek to make it accessible while trying to harness a profit. The trend over the last ten years has however been that academic publishers do not bring out large editions of a book, but only highly priced limited editions that primarily target libraries and institutional users. “We aren’t even going into foreign books, let’s say the Indian books – it’s about Rs. 800 per book. This is not an optimal pricing if you’re targeting the student market. Your target is primarily the libraries and institutional users.”

He said that this had to be seen in terms of the larger changes in the domain of academic publishing. Public money bears the cost of authors’ labour. Publishers were not paying authors a living wage or any advance for academic books. The royalty they are paid is paltry and between five and ten per cent of the printed price or the cost of the book. “So, the amount that an average academic receives is never more than Rs. 500 to Rs. 1000 in a quarter. So, whose rights are we talking about here? It’s very clear. This is an issue about the monopoly over academic publishing, and you’re creating this entirely fictitious idea of loss that happens.”

Public interest and intellectual property

“In terms of public interest consideration in this case, the question really is the way in which intellectual property has been framed. Intellectual property has been framed as an issue of the protection of the ranks of the copyright owners. The fact of the matter is that intellectual property in general, and copyright in particular, has never been about the rights of the copyright owners. The normative purpose of copyright law, starting from the earliest piece of copyright legislation, which is the Statute of Anne, in 1706 – it is described as ‘an act for the encouragement of learning’ – so, education has been at the heart, in a way, of copyright. The model that has been created, which is a limited monopoly to ensure that there is some incentivisation [sic] for authors and publishers to bring works out into the public domain. […] I think in this case, the issue is to reframe the public interest issue, to reframe the question of access to knowledge and to bring that into the core of the copyright agenda.”

Factors that the Court should consider in analysing the scenario

“I think the role of the judiciary in interpreting intellectual property law, and in copyright in particular, has always been about copyright owners, questions of public interest, and access to learning materials and access to knowledge.”

Finding a balance, Mr. Liang said, would be tricky. “Are we going to strive for this balance by putting in place a licensing mechanism, which is ideally what publishers want, especially in many developed countries of the world. But the question is whether that is a model that will suit a country like India. Anyone who has studied in the either the U.S. or the U.K. can testify to the exorbitant cost of learning materials. Certainly, there are exceptions that are granted. Course packs for example. In the U.S. for example, a court has recently held that ten per cent electronic materials would fall within fair use. But ten per cent may not be the most ideal choice in a country like India. The reason is simply this: when you start putting in a quantitative restriction of that nature, you’re basically putting in a guideline, where in many cases, the reproduced portions would exceed the ten per cent limit. For example, in the case of a fifty to hundred page book, of which two chapters are vital – the two chapters may exceed ten per cent of the book. If you look at the teaching exception, the criteria that is established is ‘to the extent justified by the purpose’. Now the role of the courts is to determine what is the extent justified by the purpose.”

In the U.S., in Williams and Wilkins Co. v. United States, the court held that there was no inflexible rule that excluded an entire copyrighted work from the arena of fair use. “Here, they find that the non-profit nature of the library, the absence of any intent to reduplicate for sale or general distribution weighs in the library’s favour. And they also reject the argument of the plaintiff of the presumed losses of royalty because they say that the presumed loss is a factor, which is necessarily assumed by the plaintiff when they had a right to issue licenses in the first place. Which is a similar case in India.”

In their argument, the publishers have used Section 14 and the fact that they are the exclusive owners of copyright. “The fact of the matter is that when there are legitimate legal exceptions that are granted, the question of licensing does not even arise.” Applying the end-user test, which has been consistently followed in a number of international cases, Rameshwari is making the copies for the individual student in the same way that a teacher may be making copies in terms of course packs for the students. “But the end user is allowed a right under the law – it is irrelevant who makes the copies themselves.”

 

(Akshay Sreevatsa is a Features Writer at myLaw.net.)

Written by myLaw

Internet and issues of jurisdiction

Hans Fredrik Lennart Neij (above), one of the co-founders of The Pirate Bay, was among four persons found guilty by a Stockholm court on April 17, 2009,  of "assisting in making copyright content available". Image above and on article thumbnail is from Wikimedia Commons.

Hans Fredrik Lennart Neij (above), one of the co-founders of The Pirate Bay, was among four persons found guilty by a Stockholm court on April 17, 2009, of “assisting in making copyright content available”.
Image above and on article thumbnail is from Wikimedia Commons.

Ever conscious about remaining a step ahead of intellectual property regimes across the world, The Pirate Bay recently revealed plans to launch low orbit drones that would house servers up to fifty kilometres in the air and redirect traffic to torrent files. The Swedish file-sharing website, which hosts several million such files that contain information about the different pieces of a target file that people want to download, is among the most popular facilitators of illegal downloading. It had housed its servers in Sweden until they were confiscated following a raid on its Stockholm offices in 2006. In 2007, the website even made a failed attempt to acquire the Principality of Sealand, an unrecognised entity located off the Suffolk Coast in the North Sea for hosting servers there. In 2008, four members of the organisation were charged with “promoting other people’s infringement of copyright laws”.

Just this week, a source in the Department of Electronics and Information Technology told The Hindu that Twitter, the micro-blogging service, had claimed that it was exempt from Indian jurisdiction because their servers were not based in India. Several Twitter handles were among the web pages that were ordered to be blocked by the Government of India as part of efforts to stop misinformation and the spread of rumours related to the tensions in the North-East and curb Twitter accounts claiming to be the official Prime Ministerial account.

Should the Internet be treated as a physical space subject to the laws of a particular jurisdiction, or be accorded the status of a world unto itself? John Perry Barlow, a notable advocate of the latter view, once declared, “Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.” A more balanced view is reflected in the Declaration of Cybersecession, which reads, “Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives. So stop intruding!” While these two views seem rhetorically appealing, they have had little impact on the laws governing the Internet. Scholars such as Lawrence Lessig, a founding board member of the Creative Commons, press for a compromise between the two notions of jurisdiction. “The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once.”

The debate over “net neutrality” has assumed increased importance in this context. The packets of data sent and received by the users of the Internet traverse through transmission infrastructure owned by a collection of private and public entities, like telecommunications networks, universities, and governments. The proponents of neutrality argue that companies providing Internet services should treat all sources of data equally. Questions about whether such companies may accord preferential treatment to content providers who pay for transmission or whether they can impede or block certain types of content, is currently the focus of fierce debate. Opponents of neutrality contend that in some cases, data discrimination is highly desirable, such as when it is done to guarantee a higher quality of service.

The internet does not have clear jurisdictional or geographic boundaries and transactions may involve three sets of laws – (a) the laws of the State where the user resides, (b) the laws applicable to the location of the server that hosts the transaction, and (c) the laws of the State applicable to the person or business with whom the transaction is conducted. Cybersell Inc. v. Cybersell Inc. was a dispute between two corporations – one situated in Florida and the other in Arizona. Faced with the question of whether it had jurisdiction, an Orlando court held that the mere use of a web page was not enough to make that website subject to the jurisdiction of the plaintiff’s forum.

Laws of different States may come into conflict when a certain type of activity or content on the Internet (such as pornography) is legal in one country and illegal in another. As there is no uniform jurisdictional law of universal application, legal practitioners are often faced with issues of conflict of laws and private international law.

In Regina v. Starnet Communications International Inc., the defendant, a Delaware-incorporated company, conducted its operations from Vancouver, British Columbia, through several wholly owned subsidiaries. One of them was incorporated in Antigua, where online gaming is legal and where Starnet had an online gaming license. Under Canadian law however, such gambling operations within its territory constituted a crime. Since the base of its operations and the controlling mind of the company were in Vancouver, this rendered Starnet liable to criminal prosecution for its activities. Ultimately, Starnet avoided criminal sanctions by eliminating its connections to Canada, and moving its operations to Antigua, along with all the devices that allowed gamblers to place bets.

In Panavision v. Toeppel, the plaintiff, a Delaware-based entity with its principal place of business in Los Angeles, alleged that a “cybersquatter” had occupied its domain names with the intent of extorting it. It succeeded in establishing jurisdiction in California over an individual in Illinois, by employing the “effects test”. The Court ruled that the defendant, who was aware that Los Angeles was Panavision’s principal place of business, was subject to California’s jurisdiction because he occupied Panavision’s domain names knowing that it would adversely affect Panavision’s business in California.

Different standards relating to the burden of proof further complicate issues of jurisdiction in civil suits. A claim may be subject to a lower standard of proof in some countries than in others. Take for example, a suit for libel instituted by an American celebrity against an online American magazine. While libel is difficult to prove in American law, a suit may be instituted in England, where the standard of proof in cases of libel is considerably lower, if the litigant has ties to that country. With the prospect of servers floating in space however, it may be time to wonder whether the Internet and its regulation may now start moving farther apart.

 

(Akshay Sreevatsa is a Features Writer at myLaw.net.)

Written by myLaw

Survey of nuclear liability regimes

The supplement to the Inter-Governmental agreement dated November 20, 1988 between India and the U.S.S.R. on cooperation in the construction of a nuclear power station at Kudankulam was signed by the Chairman, Atomic Energy Commission and Secretary, Department of Atomic Energy Dr. R. Chidambaram and the Minister of Atomic Energy of Russian Federation Prof. E.O. Adamov, in New Delhi on June 21, 1998. Image above is from the website of the Press Information Bureau.

The supplement to the Inter-Governmental agreement dated November 20, 1988 between India and the U.S.S.R. on cooperation in the construction of a nuclear power station at Kudankulam was signed by the Chairman, Atomic Energy Commission and Secretary, Department of Atomic Energy Dr. R. Chidambaram and the Minister of Atomic Energy of Russian Federation Prof. E.O. Adamov, in New Delhi on June 21, 1998.
Image above is from the website of the Press Information Bureau.

Recently, the Department of Atomic Energy (“the DEA”) extended its waiver of the right to sue the Russian supplier, to two new units of the nuclear power plant at Kudankulam in Tamil Nadu. According to the terms of the Intergovernmental Agreement (“the IGA”) between India and Russia for the supply of the first two units, the Indian operator would bear the entire liability for accident-related damage. Now, these terms have been extended to the third and fourth units. Prime Minister Manmohan Singh has asked for a legal opinion on whether the decision ran counter to the Civil Liability for Nuclear Damage Act, 2010 (“the Act”).

The justification offered by the DEA is that India had already committed to placing the liability on the Indian operator before the law was enacted. As the Prime Minister’s question remains unanswered and as nuclear safety assumes even greater importance among national and supranational entities in the wake of the Fukushima disaster, questions surrounding the Kudankulam plant have highlighted issues of liability arising from nuclear accidents.

International framework

The potential cross-border consequences of nuclear accidents necessitate an international legal regime on nuclear liability and safety and it consists of individual national laws that are often supplemented by international conventions.

Before 1997, the international liability regime consisted of two main instruments – the Vienna Convention on Civil Liability for Nuclear Damage (1963) (“the Vienna Convention”) that entered into force in 1977 and the Paris Convention on Third Party Liability in the field of Nuclear Energy (1960) (“the Paris Convention”) that entered into force in 1968. They were bolstered by the Brussels Supplementary Convention (1963). The Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (“the Joint Protocol”) was adopted in 1988, to bring together the geographical scope of the two Conventions. Parties to the Joint Protocol are treated as if they are parties to both Conventions. Therefore, if an accident occurs in a State bound by the Vienna Convention, and causes damage in a State bound by the Paris Convention, then victims in the latter State are entitled to compensation as per the Vienna Convention, and vice versa. The Paris Convention and associated Brussels Convention have been amended thrice – in 1964, 1982, and 2004, though the latest amendment has not yet been ratified by enough countries to come into force.

The Vienna Convention has been amended only once. In 1997, over eighty countries adopted the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage. The amended Convention was a significant improvement. Firstly, the operator’s liability was set at not less than 300 million S.D.R.s. Secondly, nuclear damage was defined more expansively to include environmental damage and “preventive measures”, which (according to Article 1, Clause (h) of the CSC include those measures taken after the occurrence of the accident to minimise economic loss or environmental impairment. These measures could include training personnel in disaster prevention and the appropriate disposal of hazardous nuclear waste. The Protocol also widened the geographical scope of the Convention and increased the time limit within which claims for loss of life and personal injury may be brought. Coastal States were also armed with jurisdiction over incidents involving nuclear damage during transport.

In the same year, the parties to the International Atomic Energy Agency (“the IAEA”) adopted the Convention on Supplementary Compensation for Nuclear Damage (“the CSC”). The CSC, though not yet in force, is an instrument to which countries may adhere to, regardless of their prevailing obligations under nuclear liability conventions or the presence of nuclear installations in their territories.

The CSC defines the additional amounts to be provided through contributions by States based on their installed nuclear capacity as well as a United Nations rate of assessment, which quantifies a State’s nuclear capacity in terms of Special Drawing Rights (S.D.R. 300 per MW thermal, where 1 S.D.R = 1.5 U.S.D.). For it to pass into force, five countries with at least 400 GW thermal of installed nuclear capacity must ratify it. Thus far, fourteen countries including India have signed the CSC, but most are yet to ratify it. The United States is the only country with significant nuclear capacity to do so.

The existing international legal framework is largely a patchwork quilt of international conventions that have been amended several times. Not all countries that are party to an earlier version have ratified its amended form.

Principles of nuclear liability

The five basic principles that served to determine nuclear liability prior to 1997 continue to do so today as well. Firstly, liability is fastened absolutely and exclusively upon the operators of a nuclear plant, irrespective of fault, as per Article 3, Clause 3 of the CSC. This application of the doctrine of strict liability extinguishes any ambiguity about who must pay for the damage caused. To be able to legally pursue a claim for compensation, the victims need not establish that a particular accident was attributable to the negligence of the operator of the facility or anyone else. This concept can be traced back to the English case of Rylands v. Fletcher. Justice Bramwell’s lone dissenting opinion was subsequently affirmed by the House of Lords and the Court of Exchequer Chamber and developed into what was known as “The Rule in Rylands v. Fletcher”. It draws upon a thing’s innate danger to fasten responsibility on the owner of that thing on a prima facie basis without requiring demonstrable proof of negligence or lack of care. It states, “any person who for his own purposes brings and keeps there anything likely to do mischief, if it escapes, must keep it at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape.” The significance of absolute and exclusive liability being placed upon the operator is that it removes the various hurdles of ordinary litigation.

Secondly, compensation is afforded to victims of nuclear accidents and mishaps without discrimination on the basis of nationality, domicile, or residence (Article I2, Clause 2 of the CSC). Thirdly, since operators are solely responsible for any damage arising out of an accident, Article 5 makes it mandatory for financial liability to be covered by insurance. Fourthly, as per Article 13 of the CSC, only courts of the State where the accident occurred have jurisdiction over the matter. This principle was employed by American courts to decline jurisdiction when approached for relief by Indian victims of the Bhopal gas tragedy. Such exclusivity of jurisdiction serves two important functions – first, it prevents “jurisdiction shopping” by victims; second, it ensures that victims do not have to travel great distances to locate a court of competent jurisdiction.

Finally, liability is limited both by amount and by time. When the liability exceeds the insured limit, the State can act as insurer of last resort to cover the excessive liability. Legal claims against the operator are also time bound. Article 9 provides for the extinction of claims of compensation if they are not brought within ten years. However, it also provides that where under national law, the operator is financially covered for a period greater than ten years, the competent court can extend this period of compensation accordingly. This position is the same as that under the Vienna and Paris Conventions before it (under these two Conventions however, the compensation period could also be reduced if so provided under national law). These principles recognise the benefits of nuclear power and the fact that States tacitly accept the risks attached to the construction and operation of a nuclear power plant.

National legal frameworks

The Indian Civil Liability For Nuclear Damage Act, 2010 is a controversial legislation that, while largely in line with the CSC, makes two important improvements. Firstly, under Section 17(b), it broadens the grounds on which an operator can sue his supplier. Under the CSC, an operator has recourse against his supplier only where such a right was expressly provided for in the operator-supplier contract, or in cases where the nuclear accident results from some act or omission done with the intention of causing damage. Under the Act, the operator is entitled to sue his supplier for damages if the accident was caused “as a consequence of an act of supplier or his employee, which includes supply of equipment of material with patent or latent defects or sub-standard services.” Secondly, under Section 46, the Act cannot exclude the operation of other laws in force. In the view of the government, this provision ensures that the right of the victim, to pursue criminal and tortious remedies, survive in the cases of an accident.

The nuclear power plant at Kewaunee in Wisconsin. Image above is from Wikimedia Commons.

The nuclear power plant at Kewaunee in Wisconsin.
Image above is from Wikimedia Commons.

The United States, having pioneered the concept of nuclear liability, is not party to any of the conventions except the CSC, which is yet to enter into force. There, the Price-Anderson Act, 1957 (“Price-Anderson Act”), the world’s first comprehensive nuclear liability law, addresses questions of liability in nuclear accidents. Under this law, provision is made for compensation to be paid up to U.S.D. 12.5 billion, without cost to the government or proof of fault. The Act was amended in 2005 and requires operators to be responsible for two layers of insurance cover. In the first layer, each nuclear site must purchase U.S.D. 375 million in liability cover provided by the private American Nuclear Insurers, a pool comprising sixty-odd investor-owned stock insurance companies. Half of their liability capacity comes from foreign sources such as Lloyd’s of London. The second layer is jointly funded by all U.S. operators through retrospective payments up to U.S.D. 112 million per reactor per accident collected through annual installments of U.S.D. 17.5 million.

However, the Price Anderson Act is not in line with the international liability regime. It only provides for the channelling of economic liability to the operator for an accident, leaving the legal liability to be distributed and apportioned to other entities as well.

In Europe, the national legislations of countries are in line with international conventions, though the liability limits or caps may vary within the individual countries. In France, a security of 91 million Euros must be paid for every plant, whereas in Switzerland, law requires insurance to the tune of 600 million Euros, and there is a proposal to increase this amount to 1.1 billion Euros. In Germany, the operator’s liability is unlimited, and an operator must provide a security of 2.5 billion Euros for each plant, of which 256 million Euros is covered by insurance.

In Japan, there are two national legislations that are in line with international conventions – the Law on Compensation for Nuclear Damage and the Law on Contract for Liability Insurance for Nuclear Damage. Operators must provide security of JPY 120 billion (roughly U.S.D. 1.4 billion), and assume exclusive and absolute liability, which is unlimited in quantity as well. However, the government may relieve the operator of liability where damage is occasioned by “a grave natural disaster of an exceptional character”. In the aftermath of the 2011 Fukushima disaster, the Japanese government set up a state backed institution to expedite payment to victims. Funding comes from electric power companies with nuclear power plants in Japan, and from the government through special bonds that can be cashed whenever necessary.

In the United Kingdom, the Energy Act 1983 brought national laws in line with the amendments to the Paris and Brussels Conventions as they were at that time and also set new limits of liability for the operator. In 1994, the operators’ liability was increased to 140 million pounds per major installation and they were to insure accordingly. A new legislation has been proposed which would require an insurance of 1.2 billion Euros, which would be reached gradually, beginning with an initial cover of 700 million Euros, and increased by 100 million Euros annually. In 2011, a public consultation was held where inter alia, proposals relating to government authorised waivers, indemnity, as well as government-provided insurance where commercial insurance or other financial security measures are unavailable in the private market, were discussed.

 

 (Akshay Sreevatsa is a Features Writer at myLaw.net.)

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Saving 150 million in textbook costs

John Mayer Photo courtesy, Mr. John Mayer.

John Mayer
Photo courtesy, Mr. John Mayer.

Tuition costs for legal education in the United States ranged from U.S.D. 15000/- to U.S.D. 50000/- per year. Students exit law school with enormous debt – approximately U.S.D. 70000/- to U.S.D. 100000/-. The job market for new lawyers did not hold much promise either. Less than fifty per cent of graduates were getting jobs as lawyers. A large number of them were graduating with a large amount of debt and without the ability to pay back the loans.

John Mayer is the Executive Director of the Centre for Computer Assisted Legal Instruction (“CALI”), a non-profit consortium of U.S. law schools. Last month, in a short post on the CALI Spotlight Blog, he put forward a plan, which – he argued – would result in annual savings of U.S.D. 150 million for law students. The post generated some debate on popular legal blogs. Mr. Mayer spoke with us about the proposal.

Edited extracts from the transcript of the conversation:

Mr. Mayer said that with his blog post, he had been “intentionally provocative”. “I wanted to see whether people would think it was ‘meh’ or ‘wow, that’s interesting!’ and it got a lot of both.”

The California-based Public Interest Research Group had estimated the amount that a person spends on books in higher education at U.S.D. 1100/- per year. Mr. Mayer said that these estimates were transferable to legal education and so 140000 law students spent U.S.D. 150 million on textbooks. “What if the dean at every law school in the country found one faculty member to write a case book, a text book, and that resulted in a couple of hundred text books or case books being produced over a year or two or three, and made those books available in an electronic format – like epub – which would work on a Kindle or an iPad or a smartphone. That’s how they would save students a 150 million dollars.”

What would be the incentives in such a system? “The incentives are the hard part because you are working against an entrenched or an existing system. People resist change, especially technological change, unless there is an absolutely clear benefit. The problem with the book market is that the people who decide which books students are going to buy are not the ones who use it and so they’re insensitive to the prices. They don’t care if the book is 150 or 200 dollars because they are not paying it, the student is paying it. They’re divorced or separated by one degree from the problem itself. The incentives for doing this though, would be to save students some money. Since that is not their problem, it is more of an altruistic incentive.”

Mr. Mayer said that legal education – all education for that matter – was going through a lot of change. “The core materials they have to use in teaching are going to have to go through a lot of change as well. The best way to do that would be to be able to easily manipulate them so that a lot of experimentation and innovation can happen. That cannot happen if the materials are owned by an external entity who is not motivated to allow experimentation and innovation. Publishers just want to sell you their books – that’s their job, that’s their goal. They don’t want you to be able to easily mix and match the intellectual property from multiple sources so as to produce the best possible educational environment for teaching and learning. If however, there were a commons of books and material and videos – think Khan Academy, think podcasts, think CALI lessons – then it is easier for any particular faculty member to manipulate and remix the material into something else. That is what I really want people to see.”

The private sector has not yet come out with cheap and accessible textbooks for law students, and Mr. Mayer said that he did not know the reason for that. “CALI is that actor in this economy. Just because we are non-profit does not mean that we can’t be a market actor! Our incentives may be different than pure profit but they do need the market to act in a certain way. The second thing is that academia moves fairly slowly anyhow and e-books are a fairly recent innovation. The ability to publish e-books, sort of down at the self-publishing level, has only been around for a year or so. Economic actors would appear to make available lower cost text books, even if we weren’t doing what we are doing with this project (which I’m not sure whether we are doing).”

Mr. Mayer did not believe publishers of legal textbooks would be interested in creating a commons that would undercut their own market. “No way. None of the commercial ones at least. I have spoken with others who want to start or have started their own similar projects that are based on different incentive structures.” The Semaphore Press, for example, publishes e-books and then asks students to pay whatever amount they want – there is no set price. “The author gets whatever it is that the students agree to pay but they do set an expected price – they say you should at least pay fifteen dollars per book or twenty-five dollars or something like that. They have been sort of moderately successful with that model using essentially social DRM (digital rights management). In other words, the book is open and free, but they put a note on it asking for donations. That seems to be working for them. It is a difficult model to scale, though – thousands of students, hundreds of books. I would predict that the average donation for the book would start to a de minimis amount.”

 

(Aju John is part of the faculty at myLaw.net.)

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Taylor’s trial

Recently, Charles Taylor, the former president of Liberia, was found guilty of eleven counts of war crimes and crimes against humanity and later sentenced by the Special Court of Sierra Leone (“the Special Court”).

The map above shows Sierra Leone in its region and is from Wikimedia Commons.

The map above shows Sierra Leone in its region and is from Wikimedia Commons.

Edited transcript of the recording: 

The United Nations and the government of Sierra Leone set up the Special Court in 2002 to provide accountability for atrocities committed during the Sierra Leone civil war that continued from 1991 to 2002. More specifically, the Special Court is supposed to try persons responsible for the serious violations of international humanitarian law and Sierra Leonean law that took place in Sierra Leone, from November of 1996. Unlike other experiments with international justice like the International Criminal Tribunal for Rwanda (“ICTR“) and the International Criminal Tribunal for the former Yugoslavia (“ICTY“), the Special Court is not an ad hoc tribunal. It is, instead, a hybrid court. It incorporates elements of international and the domestic law of Sierra Leone in its functioning. In this way, it is similar to the courts in Cambodia and East Timor. For example, a combination of international and Sierra Leonean personnel staff the Special Court. Similarly, it has the jurisdiction to try acts that are crimes under international law and under the domestic law of Sierra Leone. It has a presence in The Hague, in New York, and in Freetown in Sierra Leone.

As a part of its mandate, the prosecutor of the Special Court indicted thirteen people. To date, eight of these trials and appeals are over, and two were withdrawn because of the deaths of the accused. 

The Charles Taylor trial

Charles Taylor was one of the thirteen indicted people. Notably, he was accused of supplying the rebels in the civil war with weapons in exchange for what we today call conflict diamonds. He was also accused of recruiting child soldiers, terrorising civilians in Sierra Leone, and training the rebels. This translated into eleven counts of crimes against humanity and war crimes, including the aiding and abetting of murder, rape, terrorism, recruitment of child soldiers, enslavement, sexual slavery, and violence. On April 26, 2012, the trial court announced its verdict, finding Taylor guilty on all eleven counts. On May 30, 2012, he was sentenced to fifty years in prison.

The judgment and sentence have been hailed as milestones in the quest for international accountability. It is the first time since the Nuremburg trials that a head of state has been found guilty by an international court. The judgment is being called the longest ever issued by an international tribunal – the summary was over forty pages long and took two hours to read out in court. The trial has also raised several interesting questions. 

First, the judges in the trial rejected the prosecution’s arguments that Charles Taylor was a primary perpetrator or was directly responsible for any of the crimes. All eleven counts were for aiding and abetting war crimes and crimes against humanity. For example, the prosecution’s arguments on joint criminal enterprise or command responsibility were not accepted. Many commentators have called this a ‘stunning defeat’ for the prosecution.

This leads to the second issue, that of sentencing. Many commentators claim that fifty years is too harsh a sentence for a finding of indirect responsibility. 

Third, while the judgment was supposed to be unanimous, an alternate judge in the case made some dissenting remarks in open court after the bench chair read out the judgment. This has opened a whole new can of worms, regarding the legal significance of his comments, the role of alternate judges, and the unanimity of the judgment.

Finally, this case has also provided fodder for the age-old debate about double standards in international justice, and the extent to which these trials can really be called fair. No one argues that Charles Taylor is innocent but systemic concerns continue to exist. The standard criticism of international justice today is that these courts only pursue a politicised and selective form of justice. The International Criminal Court, for example, has come under great flak because all its cases are based in Africa, and most are based on Sub-Saharan Africa. In the context of Charles Taylor, there was a cable released by Wikileaks in 2009 from the U.S. which implied that if the Special Court acquitted Mr. Taylor, or gave him a light sentence, the U.S. would extradite him for financial crimes and try him anyway – the reason being that Mr. Taylor’s return to Africa was viewed as potentially dangerous politically. The U.S. has been one of the most crucial political and financial backers of the Special Court, which is financed entirely by voluntary contributions. Mr. Taylor has gone on record since his judgment came out to state that the Special Court verdict is part of a western conspiracy against him. While no one believes that he is innocent, there are concerns about the general selectivity of international justice, and the verdict has exacerbated these concerns.

The story is by no means over, and reports suggest that an appeal is expected from both sides. The prosecution wants a harsher sentence, while Taylor has claimed that the prosecution coerced and paid witnesses to testify against him. Since there is a two-week window to file an appeal after sentencing, we should be getting an update about this any time now.

(Sanhita Ambast is a joint degree student at the Fletcher School of Law and Diplomacy and Harvard Law School.)

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