Showing papers in "Houston Journal of International Law in 1999"

International Legal Responses to Terrorism

Abstract: I. INTRODUCTION On average, from 1993 to 1998, eleven Americans died as victims of international terrorists each year,(1) but the effect of terrorism--the quintessential "propaganda of the deed"--goes far beyond those numbers. Indeed, it may paralyze even powerful governments, as occurred to the United States when its diplomats were taken hostage in 1979.(2) Now, the technology of transportation about the planet has advanced to the point where it has become increasingly easy to plan and implement highly destructive terrorist actions in the territory of another state, whether the technique of destruction is by electronic or kinetic intervention, or by conventional explosive, nuclear, chemical, or biological weapons. The diffusion of modern technology, the astonishing proliferation of information about the ways and means of conducting terrorist actions, and the amplification of the damage that terrorists now seem capable of wreaking, seem likely to make terrorism more attractive to would-be users and, as a result, of vastly heightened concern to an increasingly large class of potential targets. When the source of terrorism is foreign, or parts of the planning and implementation occur outside the target state, the responses of the targeted government are necessarily international political events.(3) International law becomes engaged and, as such, it may have significant effects on the range of options available to the target state and its nationals.(4) Yet, as we will see, the international prescriptive or law-making responses to international terrorism have manifested a remarkable resistance to comprehensive analysis and development of an appropriately diverse set of authorized responses. My remarks today are concerned, first, with inventorying the ways that international law affects the shaping of government responses to international terrorism by prescribing generally or particularly the contingencies, procedures, and scope of response--be it unilateral or multilateral--lawfully available to a target; and second, with exploring the reasons for the rather spotty record of achievement. To make this big task more manageable, I propose to identify the key categories of potential authors of international terrorism and then to examine trends of legal decision with respect to the parameters of lawful responses that have been created for each of them. Plausible responses by targets will be appraised, not simply in terms of certain rules that are supposed to form part of a black-letter code of international law, but in terms of the acceptability of those responses, in different contexts, to the contemporary international decision process. By that decision process, I do not mean only the responses of officials of states, but the aggregate actual international decision process, comprised, as it is, of governments, intergovernmental organizations, non-governmental organizations, and, in no small measure, the media; in short, all the actors who participate in assessing, retrospectively or prospectively, the lawfulness of international actions and whose consequent reactions constitute, in sum, the international decision. The legal scholar, too, plays a distinctive role in this decision process, for the object of inquiry in all legal research is a complex variable that is influenced by its mere observation and may be adjusted, sometimes significantly, to accord more closely to the preferences of the scholar. The New Haven School(5) explicitly acknowledges this ineluctable feature of scholarship, insisting that it is not sufficient for the scholar simply to identify and assemble trends in decision. Trends must then be tested against the requirements of world public order as a means of assessing their adequacy. Insofar as they are found wanting, scholars should take the responsibility of proposing alternative arrangements so that a better approximation of political and legal goals can be achieved in the future. …

PIC, POPs and the MAI Apocalypse: Our Environmental Future as a Function of Investors' Rights and Chemical Management Initiatives

Abstract: I. INTRODUCTION An increase in the environmentally destructive capabilities of humankind can be quite vividly linked with the development of the corporate form. Recently, however, these legal entities have grown and developed into multi-national giants, which have begun to assume tremendous political and economic power. In the 1990s large business enterprises, even some smaller ones, have the technological means and strategic vision to burst old limits--of time, space, national boundaries, language, custom, and ideology. By acquiring earth-spanning technologies, by developing products that can be produced anywhere and sold everywhere, by spreading credit around the world, and by connecting global channels of communication that can penetrate any village or neighborhood, these institutions we normally think of as economic rather than political, private rather than public, are becoming the world empires of the twenty-first century.(1) While some industrial sectors have more potential for environmental harm than others, the chemical industry would be at the top of such a list. Its destructive acts have been researched back to the mid-1800s in relation to aniline dye manufacturers,(2) and it has also been immortalized in literature. Rachel Carson's book, Silent Spring, exposed the dangerous use of Dichloro Diphenyl Trichloroethane (DDT) in 1962.(3) International environmental attention has recently focused on the dangers of allowing certain chemicals and pesticides to continue to be utilized in a predominately unregulated fashion. To this end, two draft conventions on Prior Informed Consent (PIC)(4) and Persistent Organic Pollutants (POPs)(5) have been initiated. However, a new Multilateral Agreement on Investment (MAI)(6) will likely liberalize and internationalize the capitalist market economy and thereby serve to undermine any benefits which would have been gained by the PIC and POPs conventions. It is through an examination of chemical use, the chemical industry, the negotiating processes, and draft conventions that the potential fate of the global environment is revealed. II. CONTEXTUALIZING THE CHEMICAL INDUSTRY A glance through magazine advertisements demonstrates that the world has become a place of startling anthropocentric contrasts. Contrast an advertisement for Elf Autochem, a French chemical manufacturer, containing a slogan to promote bromine derivatives stating, "There are faster routes to building your molecules!"(7) with an advertisement for a "Chemical-Free Christmas Tree" to "[p]rotect your own health."(8) What the Elf Autochem advertisement fails to state is that the chemicals they manufacture can be deadly. Methyl bromide is a pesticide produced by Elf Autochem(9) and is most commonly used as a soil fumigant,(10) This product has been characterized as the "`almost perfect pesticide"' because "[w]ith one application you can kill weeds, insects, rodents ... you name it." (11) The unstated disadvantage is that [t]he features which make methyl bromide "almost the perfect pesticide"--its high toxicity to pests and its ability to penetrate fumigated substances--also increases its toxicity to humans. Exposure to methyl bromide can cause acute damage to the central nervous system, lungs, kidneys, eyes and skin. In their "risk assessment" research, scientists have not found a dose of methyl bromide low enough for them to deem "safe".(12) Furthermore, since 1992 methyl bromide has been listed as an ozone depleter under the Montreal Protocol on Substances that Deplete the Ozone Layer. (13) This is the reality of the world in which we live. One in which the benefits of chemical use, whether for agricultural production or vector-borne disease control, has distorted our perception of what these chemicals are--poison. In short, the "miracles" of chemical use have helped to reinvent our perception of nature so that what we used to describe and enjoy as nature has been reduced to "environment. …

The Economic Espionage Act of 1996: Are We Finally Taking Corporate Spies Seriously?

Abstract: I. INTRODUCTION For many companies, information is the most important resource available. Many executives only realize the value of their corporation's secrets when these secrets are stolen and disclosed to a competitor, resulting in huge economic losses.(1) Since the end of the Cold War, American companies have increasingly been targeted by spies funded by competitors or foreign nations, or both, in search of trade secrets.(2) The Economic Espionage Act of 1996 (EEA),(3) enacted to facilitate the criminal prosecution of industrial spies,(4) constitutes a new weapon against corporate spying. It makes the theft of proprietary economic information a felony and protects trade secrets at the federal level.(5) By discouraging improper trade conduct by both foreign governments and private parties, it reflects Congress's recognition of the need to protect U.S. technology from unethical business competitors. The EEA does so by providing severe criminal penalties for those prosecuted under its provisions.(6) The scope of this Article is to analyze the EEA. Part II describes the nature of international and domestic economic espionage(7) and why it is a threat to corporate success and national security. Part III looks at legislation in existence prior to the EEA and analyzes why that legislation failed to substantially curb the theft of trade secrets, particularly as it related to small businesses and information stolen by foreign participants. Part IV examines the EEA itself, its legislative history, and the case law that has emerged since its enactment. An analysis of the statute suggests that its provisions are very broad and that if not used selectively, it could potentially hamper the mobility of workers in the labor market, thereby reducing innovation and creativity in the U.S. economy. Part V considers the strategic implications of the Act for practitioners and corporations. This Article concludes, in Part VI, by suggesting a proactive plan allowing companies to protect their trade secrets from foreign spies and from their own employees who may sell that information to the highest bidder. Organizations that have implemented internal security programs are likely to be in the best position to protect their trade secrets from dishonest competitors while insulating themselves from a trade secrets prosecution. II. THE PROBLEMS OF INDUSTRIAL ESPIONAGE Innovation, a significant factor in economic growth, requires a substantial investment of time, money and human resources.(8) If companies lose valuable secrets to industrial espionage, they cannot profit by utilizing their competitive advantage.(9) In turn, if they are unable to recoup their investments in research and development, they lose their motivation to innovate and bring new products or services to consumers. The consequences include higher prices charged to consumers,(10) as well as a decrease in new technologies, creative inventions, and improvements.(11) Furthermore, the very concept of privacy "is threatened when industrial espionage is condoned or is made profitable."(12) Since the end of the Cold War, the focus of intelligence and counterintelligence efforts has shifted from military and political targets to technological and economic ones.(13) Nations have been reshaping their intelligence agencies and investigative resources to be more responsive to the competitive and global needs of businesses.(14) The Cold War has been replaced by the Economic War.(15) The increase in trade secret theft has placed the technologies of U.S. companies, ranging from simple textile formulas to complex defense technology, at great risk.(16) Pricing data, customer lists, information on product development, basic research, sales figures, and marketing plans appear to be the most coveted items.(17) In 1997, more than 1,100 documented incidents of economic espionage and at least 550 suspected incidents were reported by U.S. companies.(18) The Federal Bureau of Investigation (FBI), which is now devoting more resources to fight industrial espionage, has reported that its economic espionage caseload doubled from 400 in 1994 to 800 in 1995. …

What's the Connection? Vietnam, the Rule of Law, Human Rights and Antitrust

Abstract: I INTRODUCTION Foreign attempts to support advancing the rule of law(1) in Vietnam have taken many forms In addition to focusing almost exclusively on economic law, existing legal assistance projects tend to concentrate on obvious targets such as the National Assembly, the courts, and human rights in general(2) This essay proposes taking a different direction through the involvement of the United States in a somewhat unique domain for foreign legal aid: the introduction of an antitrust regime This article aims to create a specific model demonstrating the potential social benefits that adherence to the rule of law may deliver It introduces a project design that with US help will provide an antitrust system to Vietnam The example proposed here requires, among other things, the drafting of country-specific antitrust legislation and the establishment of adequate enforcement mechanisms The overall hope is that successful implementation of the outlined project will significantly promote the advancement of the rule of law and human rights in Vietnam Possible improvements in US-Vietnamese relations, as well as the enhancement of US commercial interests in Vietnam, are also envisaged Part II briefly outlines the relevant political and legal background Part III, forming the bulk of this essay, discusses the rationale for a US-backed antitrust project Part IV considers in some detail the project's strategy and proposed implementation, and Part V describes a number of possible risks arising from it The general approach taken here is that utilization of extensive US experience in the antitrust field can produce noticeable gains that will be felt by the Vietnamese society as a whole At the same time, an antitrust project is not overly ambitious and avoids antagonizing the Vietnamese leadership II BACKGROUND A General Background Vietnam(3) has two main historical features The first feature is constant wars(4) The second feature is strong political influence by various foreign powers, including China, France, the former Soviet Union, and the United States(5) Indeed, the effects of Confucianism, Colonialism, Communism, and local traditions are manifested in the legal system of today's Socialist Republic of Vietnam(6) In 1986, pursuing economic prosperity, Vietnam embarked on a course of economic reform called doi moi, meaning renovation? Despite many obstacles, the policy of doi moi continues today largely because the Vietnamese Communist Party (VCP) appears to assume that its future is firmly pinned to continuing economic growth(8) B Political and Legal Reforms Vietnam's movement toward a market-oriented economy is accompanied by economic legislation considered necessary for that purpose(9) While the VCP seems determined to adapt the legal system to the needs of the changing economy,(l0) Vietnam remains a one-party state under their leadership(11) Stemming from this political and economic state of affairs are a number of contentious issues including the suitability of the separation of powers doctrine, the need to restructure the central state apparatus, and the protection of human rights(12) More specifically, legal reforms raise serious concerns about the independence of the judiciary, the legislative struggle for power, the role of the executive within the legal system, and the fundamental problem of conflicting legal construction models(13) In summary, the role of the VCP and the related issue of the rule of law are sources of continuing tension within Vietnam III PROJECT RATIONALE A Objectives The objective of the scheme outlined here is to actively support the evolution of the rule of law in Vietnam while remaining aware of the interests of US businesses and others 1 Primary Objective: Establishing the "Rule of Law" Relying on the "Western" model as a yardstick for evaluation, the significant elements of the rule of law opposing governmental arbitrariness existed in traditional Vietnam …

Yin and yang: the eugenic policies of the United States and China: is the analysis that black and white?

Abstract: If in the First Act you hang a gun upon the wall, by the Third Act you must use it. Chekhov I. INTRODUCTION As technological and scientific advances proliferate, innumerable questions regarding legal, cultural, ethical, and human rights issues arise begging for answers. In the ever-broadening global climate of economics and human rights, politicians and world leaders are more frequently asking about the impact of these technologies on the policies of countries around the world. More specifically, as genetic and reproductive options are enlarged, their effects elicit questions related to procreative rights, discrimination, and population policy. The purpose of this comment is to analyze the eugenic practices and policies of the United States and China, and comment on their respective human rights implications. This Comment will outline the development of the eugenics movement and how eugenic practices have largely been abandoned in the United States. This will be contrasted with the continuing eugenic sterilization practices in China. This comment will also distinguish the social goals of sterilization policies in both countries. It will recognize as the primary distinction in policy the fundamental choice of whether to subordinate the well being of the individual to the well being of society. In addition, it will discuss the permissive genetic policies in the United States which may implicitly endorse eugenic practices. II. EUGENICS DEFINED For many, the term "eugenics" conjures up some image of a science fiction experiment gone amuck. The film industry has produced enough movies of aliens bred to have certain omnipotent or omniscient capabilities to somewhat justify that notion. However, the term "eugenics" comes by this connotation honestly, as it was first widely discredited in connection with atrocities of Nazi policies in Germany.(1) Surprisingly, the beginning of eugenics comes from a more palatable background. Plato was one of the earliest theorists to advocate the betterment of the human race by choosing the correct mate.(2) The term "eugenics" comes from the Greek word meaning "well born."(3) It was coined by Charles Darwin's cousin, Francis Galton, who defined it as "the science of improving stock."(4) Bertrand Russell, a British philosopher, described it as more of a social movement than a science in that it "attempt[s] to improve the biological character of a breed by deliberate methods adopted to that end."(5) There is some controversy over the definition of eugenics and how broadly the term sweeps. Much of the controversy focuses on whether eugenics should be defined in terms of the intent of the policies or their consequences.(6) However, all eugenicists share the common belief that "individual desires should be subordinated to a larger public purpose."(7) The definition of eugenics can be further delineated into "positive" and "negative" eugenics. Positive eugenics is similar to Plato's view which attempts to improve the race through selection and maximization of "socially desirable" genes.(8) In this instance, eugenicists try to manipulate genes or the mating of genes to increase the incidence of "positive" or "desirable traits."(9) This can be contrasted with the more controversial negative eugenics which seeks to eliminate those "bad" or "undesirable" genes or traits from the gene pool.(10) The most infamous example of negative eugenics was Hitler's attempt in the Lebensborn Project to produce "good babies."(11) Accounts vary as to the actual numbers, but historians agree that Hitler had as many as sixty to a hundred thousand "unfit" persons sterilized in an attempt to prohibit reproduction by defectives and eliminate their bad genes from the human race.(12) Eugenicists believed that through the use of both positive and negative eugenics they could eliminate many so-called hereditary defects such as mental retardation, criminality, and mental illness, and thereby eradicate many social problems. …

Send Me Your Money: Controlling International Terrorism by Restricting Fundraising in the United States

Abstract: I. INTRODUCTION Policy relating to international terrorism has long been a hotly debated issue in the United States.(1) While virtually everyone would agree that terrorism is bad, few agree whether to bargain with terrorists, how to punish terrorists, or even who qualifies as a terrorist.(2) However one chooses to define terrorism, its international impact cannot be underestimated.(3) The U.S. State Department recently reported that while incidents of international terrorism have fallen over the last ten years, the number of victims has increased.(4) According to FBI Director Louis Freeh, "Although the number of attacks directed at American interests remains comparatively low, the trend toward more large-scale incidents designed for maximum destruction, terror, and media impact actually places an increasing proportion of our population at risk."(5) Religious fanatics were responsible for most terrorist acts in 1996.(6) The most active terrorist group that year was the Kurdistan Workers Party, which was blamed for seventy-six minor terrorist attacks in Germany.(7) While the attacks of the Kurdistan Workers Party caused little damage and no casualties, Iran was probably responsible for over fifty murders of political dissidents between 1990 and 1996.(8) The State Department reported that approximately twenty-five percent of the terrorist attacks were directed toward American targets outside of the United States.(9) In response to terrorist incidents at home and abroad, Congress pushed terrorism back into the limelight and developed new preventative legislation. Congress passed 18 U.S.C. [sections] 2339A in 1994.(10) It was amended by the Antiterrorism and Effective Death Penalty Act of 1996.(11) These laws include provisions that make it illegal to solicit funds or donate money to international terrorist organizations.(12) In addition, President Clinton signed an executive order designed to protect the Middle East Peace Process in 1995.(13) Congress hopes these measures will stem the tide of money being sent from the United States to foreign terrorist organizations.(14) Following the federal lead, in 1996 Illinois became the first state in the country to pass legislation restricting terrorist funding.(15) These laws could have a strong impact on international terrorism by cutting off a major source of funding for terrorist groups.(16) However, the laws have had virtually no effect thus far because they are nearly impossible to enforce.(17) This comment will explore the new legislation and the problems with enforcement. II. WHY ANTITERRORISM LAWS WERE PASSED The antiterrorist funding restrictions respond to the government's fear that terrorist groups are using charitable inclinations of Americans to fund terrorist activities abroad.(18) The 1995 Global Pattern of Terrorism study reported that the Palestinian group HAMAS, the radical Jewish groups Kach and Kahane Chai, the Sri Lankan group Liberation Tigers of Tamil Eelam, the Provisional Irish Republican Army (PIRA),(19) and the Sikh groups of Babbar Khalsa and Khalistan Liberation Front received external aid from North America.(20) While it is clear that American money is sent to fund foreign terrorists, it is unclear how much of the money is actually raised in the United States.(21) FBI Director Louis Freeh said, "We have been able to show the transfer of substantial cash funds from the United States to areas in the Mid-East where we could show Hamas received an even expenditure of those funds."(22) However, Freeh admitted that FBI surveillance may have only uncovered a small percentage of this activity.(23) New York Senator Charles Shumer believes HAMAS may get as much as fifty percent of its funding from the United States.(24) Steven Emerson testified before the Senate Foreign Relations Committee that HAMAS has a yearly budget of seventy to ninety million dollars, approximately half of which is received from the United States and other Western countries. …

Where the United States Goes the World Will Follow - Won't It?

Abstract: I. INTRODUCTION To compete in the rapidly emerging global economy, business and commerce must have strong encryption schemes, available on an international basis, to protect the confidentiality and integrity of business transactions and electronic commerce.(1) The U.S. encryption industry dominates the market for encryption technology, but its lead may be diminishing.(2) The U.S. encryption industry stands poised to lose its competitive edge to foreign encryption industries,(3) which some think will result in the loss of thousands of jobs and millions of dollars in revenue.(4) International and domestic debates on the regulation of encryption technology have reached a crescendo. The purpose of this comment is to clarify the debated issues, as well as to encourage industry to abandon its insistence on a total abrogation of regulation of encryption technology, and to work with the Clinton Administration to develop a compromise. Part II of this comment provides a quick tutorial on encryption. Part III describes the competing arguments for and against regulation, in the form of "key management." Although presented from the U.S. perspective, these arguments mirror the struggles taking place in other countries that are formulating their own encryption policies.(5) Part IV discusses how the United States is regulating encryption technology. This section specifically examines the internal discord in Congress over regulation of encryption technology. Part V compares how other countries and multinational organizations are cultivating encryption policy. Part VI concludes that the encryption industry must take immediate action to maintain its competitiveness, which can be achieved by working with, rather than against, the Clinton Administration. II. A TUTORIAL: THE KEY TO ENCRYPTION Encryption is a technique for encoding information that allows only a person possessing an appropriate electronic key to decode it.(6) The information is first scrambled using a mathematical function called an algorithm.(7) The algorithm lets an individual select a "key" that is used to encrypt the information.(8) The "algorithm can be either a `secret key' algorithm or a `public key' algorithm."(9) Secret key cryptography uses the same secret key for encryption (sender) as for decryption (receiver).(10) Public key cryptography uses different keys for encryption and decryption,(11) One key is kept private while the other, the public key, can be published in directories.(12) A sender obtains an intended recipient's public key and uses it to encrypt a message.(13) The recipient uses his private key to decrypt the message.(14) Secret key encryption works like this. Amanda wants to send Peter an encrypted message so together they obtain a secret key. Amanda encrypts her message with the secret key and Peter uses the same key to decrypt the message. If Dan the FBI agent wants to read Amanda's messages, he obtains the proper authorization, such as a Title III judicial wiretap authorization,(15) to monitor Amanda's e-mail. With this authorization he obtains Amanda's secret key from the escrow agent. Dan can then read all messages originated by Amanda. It is possible to decode the message without the secret key by using brute force.(16) Brute force is a decoding method that uses a modern high speed computer programmed to try every possible key combination until it detects the correct one.(17) The longer the key combination the more time and resources it takes to break the code through brute force.(18) The length of the key combination is measured in bits.(19) After a one-time review, U.S. companies in certain industries may export encryption products of fifty-six bits without key recovery.(20) Other U.S. companies may export encryption products of any strength if a third party may recover the key or plain text.(21) Under the current export regulations, the encryption user must store crypto keys so they will be available if needed for criminal or security investigations. …

Sanctions against Perpetrators of Terrorism

Abstract: Since the title for this panel is "Presidential Uses of Force and Other Sanction Strategies," I will begin with "other sanction strategies"--that is, other than use of force. I would rather not be cast in the role of the dove on the panel to comment on illegitimacy of uses of force (presidential or otherwise), because I do not want to rule out or necessarily oppose presidential uses of force for counter-terrorism purposes in all circumstances. Indeed, I find myself in considerable agreement with Professor Reisman's lecture. Although I have disagreed with some of his writings and positions on uses of force in other contexts, I share a large measure of support for the positions he has articulated today. Thus, I will focus on other nonforcible legal strategies. As lawyers we should view the problem of legal responses to terrorism as multifaceted, requiring diverse strategies. Military strategies are not necessarily the preferred course of action but rather one among many strategies that can complement the array of other available techniques. Professor Reisman has already brought out some of the nonforcible approaches. Where he and I would differ is more in terms of emphasis or perhaps the sequencing of these techniques--that is, the priority or preference in which the respective techniques of coercion should be deployed. Terrorism is first and foremost a law enforcement problem. The United States must and does vigorously participate in the many multilateral treaties that are designed to suppress international terrorism through cooperative law enforcement. The most recent, as Professor Reisman has mentioned, is the new International Convention for the Suppression of Terrorist Bombings, opened for signature in January 1998.(1) The Convention joins about a dozen multilateral treaties (on safety of civil aviation, crimes against diplomats, physical protection of nuclear material, hostage-taking, maritime piracy, and other topics) that follow a similar pattern. Broadly speaking, they all require states either to prosecute such crimes under their own laws or to extradite the accused to another state that will prosecute. If there is an area of substantial agreement on the panel, it would be on vigorously pursuing these law enforcement techniques. Professor Reisman has criticized this network of treaties as being insufficient and perhaps ineffective; an issue also arises as to whether these treaties could be read as implicitly precluding a unilateral resort to force. I do not necessarily agree with the proposition that these treaties deal even by implication with regulating use of force. Evaluation of the permissibility of the use of force under international law calls for a different framework of analysis than interpretation of a law enforcement treaty. Another kind of approach is the deployment of concerted strategies to deny actual or potential terrorists the material resources to carry out their plans. Among these strategies are economic sanctions, broadly defined as nonforcible measures to interrupt ordinary economic and financial relations with the perpetrators or sponsors of terrorism. The antiterrorism components of U.S. sanctions laws (or put differently, the economic sanctions components of U.S. antiterrorism laws) have become quite numerous. They include provisions for the control of exports and regulation of imports,(2) ineligibility for foreign assistance,(3) restrictions on armed forces procurement and arms exports,(4) requirements that the United States oppose loans or credits from international financial institutions to state supporters of terrorism,(5) and other measures. Against whom are such measures of economic denial to be directed? In the first instance they can certainly be directed at state supporters of terrorism. Indeed, for some years the Secretary of State has been required by law to maintain a list of the states that are designated as supporters of international terrorism. …

The Right to Privacy Is Coming to the United Kingdom: Balancing the Individual's Right to Privacy from the Press and the Media's Right to Freedom of Expression

Abstract: I. INTRODUCTION On January 25, 1990, Gorden Kaye, a well-known English actor, was in an automobile accident in which he sustained substantial head injuries.(1) While recovering from brain surgery in the hospital, journalists gained unauthorized access to his private room and interviewed and photographed him in his debilitated state.(2) Kaye asked for "an interlocutory injunction to prevent publication [of the article and pictures,] alleging malicious falsehood, libel, passing off and trespass to the person."(3) He was granted the injunction,(4) but on appeal, Judge Glidewell replaced the lower court's injunction with one less restrictive. He said: It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.(5) Currently there is no domestic legal recourse in the United Kingdom for a person in Kaye's circumstances,(6) but this state of affairs is soon to change. On November 9, 1998, Parliament passed The Human Rights Act of 1998,(7) which incorporated the European Convention on Human Rights (ECHR)(8) into domestic law.(9)The ECHR guarantees individuals a general right to privacy,(10) as well as the right to freedom of expression.(11) Although originally meant to protect an individual's human rights from violations by the State, the ECHR could be interpreted to protect the individual's rights from violations by nongovernmental entities such as the press.(12) This interpretation would give a person in Kaye's situation a legal remedy.(13) The untimely death of Princess Diana led to the public condemnation of the press for their alleged role in the accident.(14) This tragedy cemented the public's view that the press had grossly overstepped its bounds for invading a person's privacy for no other reason than its own financial profit.(15) Diana's death and the incorporation of the ECHR into UK domestic law mean that the right to privacy will most likely result in the development of laws governing invasive intrusions on individuals by nongovernmental entities such as the press.(16) It is far from settled, however, what shape this law will take.(17) The first part of this Comment discusses whether the ECHR rights embodied in the Human Rights Act should have a higher, more protected status than other statutory rights. A brief description of the origins and structure of the ECHR is given, detailing the provisions of the right to privacy and freedom of expression. The paper then examines two models that other countries used to establish their own versions of the rights embodied in the ECHR, and analyzes the impact of each model on the citizens, government, and legal systems of the United Kingdom. This section concludes by observing how future changes to the international ECHR might impact domestic UK law. The issue of whether a right to privacy exists, especially from invasions by the press, is the subject of the second part of this Comment. The unjustified invasion of a person's right to privacy by the press is a growing and important problem.(18) In fact, some aspects of a privacy right have been recognized and protected by UK law, although different terminology and legal constructs have been used.(19) However, case law, such as Kaye v. Robertson, illustrates that the existing remedies for violation of this right to privacy do not adequately protect the individual from unjustified, invasive journalistic tactics.(20) Recognizing the need for an adequate remedy, this Comment addresses whether laws implementing this new right to privacy should be established by the British Parliament or courts. After examining the difficulties in defining the broad concept of a right to privacy, the Comment analyzes the present stances of the press, government, and judiciary as well as the arguments for and against the protection of privacy interests in each of these arenas. …

Democracy, Judicial Reform, the Rule of Law and Environmental Justice in Mexico

Abstract: 1. Some of the basic components of this work were included in a speech co-sponsored by the University of Houston Law Center and the Environmental and International Law Sections of the Houston Bar Association. It was delivered by the author as the 1997 A. L. O’Quinn Distinguished Lecturer on October 30, 1997 at the Houston Club. It was in the same capacity that the author completed the research for this article, updating it through August 1998 to cover relevant developments in Mexico on the subject. This work is also written on the occasion of the author’s 30th anniversary as a lawyer and as a reflection on the experience gained in litigating public interest issues during the last eight years. A few months after the completion of this work, the Organization of American States Inter-American Commission on Human Rights issued Reports on the Situation of Human Rights in Mexico, 1998 (OAS/Ser.L/V/II.100, Doc. 7 rev. 1, September 24, 1998), where a high degree of coincidence and support will be found for the information provided and for the analysis made by the author of this article.

Connecting Currents: Toward the Integration of North American Electricity Markets

Abstract: I. INTRODUCTION As recently as 1991, closed markets and governmentally owned or regulated monopolies characterized the electricity industries of Canada, Mexico, and the United States.(1) In the past, trade in electricity among these nations consisted only of limited power transfers between border utilities.(2) Today, North American electricity markets look quite different. All three countries have liberalized their industries to varying degrees by promoting competition at the wholesale level.(3) This liberalization is creating new opportunities for the trade of electricity across North American borders, thus, leading one Canadian industry executive to predict that North American electricity markets will integrate to form one market within the next ten years.(4) Interestingly, unilateral actions taken by the United States to open its domestic industry to competition, rather than the momentous ratification of the North American Free Trade Agreement (NAFTA),(5) precipitated this movement toward the integration of North American electricity markets.(6) Historically, vertically integrated,(7) government regulated monopolies dominated the U.S. electricity industry,(8) In the early 1990s, Congress initiated regulatory reforms to promote competition in U.S. electricity markets.(9) The reforms, which amounted to an incremental "restructuring"(10) of the industry, began with the enactment of the Energy Policy Act of 1992 (EPAct).(11) EPAct permits regulated competition in the electricity generation market and, by extension, the wholesale electricity market.(12) EPAct further allows U.S. power generators to serve foreign markets directly, to the extent foreign markets are open to such service,(13) and permits foreign power marketers to compete in the growing wholesale market of the United States.(14) Although not necessarily designed to do so, the reforms of EPAct promote electricity trade among the United States, Canada, and Mexico. Current market conditions in the three countries make increased power transfers irresistible to each.(15) Canadian utilities find that utilizing their excessive generating capacity to sell millions of dollars of electricity in the competitive U.S. wholesale market is an obvious antidote for their current financial woes.(16) Large investments in production facilities coupled with several years of stagnation in demand have resulted in Canadian utilities being burdened with the cost of immense generating capacity without sufficient markets for their power.(17) These utility companies believe they will be successful in the U.S. wholesale market because the low cost of producing hydroelectric power in Canada makes their prices attractive to U.S. purchasers.(18) Mexico finds that competitive U.S. wholesale prices make purchasing U.S. electricity a viable means of meeting its rapidly rising demand.(19) Mexico's government owned monopoly, the Comision Federal de Electricidad (CFE),(20) does not have the financial ability to invest in its own generating capacity and meet the current rate of demand growth.(21) The EPAct increases the number of buyers and sellers of electricity, which increases Mexico's chances of finding U.S. suppliers to meet its demand.(22) Therefore, by purchasing U.S. power at competitive prices, Mexico is able to delay investment in its own production facilities and still buy power cheaper than it can produce it.(23) The United States also has economic incentives to increase trade in electricity with its neighbors. The introduction of cheap Canadian power into the U.S. wholesale market will eventually reduce retail prices to U.S. consumers, and offering consumers the lowest price is one of the primary goals of market liberalization in the United States.(24) Furthermore, U.S. power generators will benefit from the accessibility of foreign markets in which they can sell their power.(25) Mexico is particularly enticing to them since its demand is steadily rising. …

Legal Responses to International Terrorism: Constitutional Constraints on Presidential Power

Abstract: Watching the news this morning on CNN, and reading the front page of this morning's USA Today, I learned there is a heavy-weight championship fight coming up in a few days; and I was wondering if this morning's panel was going to seem like a preliminary bout to that contest. If anyone has that expectation, I fear I may disappoint you, as neither Michael Reisman nor Loft Damrosch said much with which I would disagree. Indeed, if Loft had stopped after the first twenty minutes, I would have had difficulty thinking of anything that either of them had said with which I would wish to dissent. As always, Michael's presentation was absolutely brilliant. He made a couple of points I might elaborate on, and after we each expanded our views there might be some FLue differences; but I found nothing in his presentation with which to quarrel. Similarly, Lori's presentation was excellent. Early in her presentation she indicated she felt I would disagree on how soon we should resort to the use of lethal force, but I don't disagree in principle at all that the use of force is a last resort--and must be a last resort if it is to be permissible under international law. When we get into the War Powers Resolution I am confident some differences will emerge, but as a general principle I found myself quite comfortable with both presentations. I. THE THREAT OF TERRORISM Michael made the point, which I had not heard before, that more Americans may die each year from bee stings than die in terrorist attacks. As a factual matter the point may well be valid, but I suggest it has less to do with the risks we face than with our remarkable good fortune--thus far. It was a clever comment. But I do not think Michael would disagree with me that America faces a serious threat of terrorism, and perhaps because we have been so lucky, many Americans do not take the threat seriously enough. Let me illustrate my point with a reference to the February 26, 1993, World Trade Center bombing, which killed half-a-dozen people. To be sure, in the big picture, that is not a vast number. However, the possible number of fatalities could have been much greater considering that an estimated fifty thousand people were evacuated from the twin towers following the bombing--roughly the number of Americans killed during the entire thirteen year Vietnam conflict. If the participants in that attack had been a little smarter, we might well have been burying Americans by the tens of thousands. To put it mildly, we were lucky. If America's luck is the good news, there is also bad news. The World Trade Center attack was with conventional explosives. If a single terrorist attack with conventional explosives might have killed as many people in a few minutes as we lost in thirteen years of combat in Indochina, what can we expect if our adversaries elect to use a weapon of mass destruction? Michael mentioned a little about what is being done with "bugs"--things like anthrax, smallpox, and the plague. Literally tons of these agents have been produced around the world for use in weapons, and our ability to deal effectively with such an attack is extremely limited. I have been involved in some military war gaming--examining the likely consequences if a terrorist sprayed a little anthrax around a major international airport, or ... well, I do not want to give anybody any ideas by going into details. Let's just say we are talking about a risk of millions of people losing their lives in a matter of days under some of these scenarios. With our marvelous Internet, of course, we also face the possibility of a combined effort involving ideological or theological terrorists, drug cartels, international organized crime, and perhaps other extremists joining in a common cause to launch coordinated attacks in major population centers around the globe. The timing of Osama bin Laden's embassy bombings last August(1) is but a primitive warning of what may lie ahead. …

Bootlegs and Imports: Seeking Effective International Enforcement of Copyright Protection for Unauthorized Musical Recordings

Abstract: I. INTRODUCTION In response to the swell of worldwide bootlegging and piracy of music, sound recordings, and motion pictures, several conventions have been held throughout the international community, resulting in anti-bootlegging treaties and laws.(1) These treaties and laws seek to establish a global system of copyright enforcement to curb the bootlegging problem.(2) This Comment will examine several of these international treaties and trade agreements, including the Berne Convention for the Protection of Literary and Artistic Works,(3) the Geneva(4) and Rome Conventions,(5) the Uruguay Round Agreements Act (Uruguay Round)(6)--trade negotiations under the General Agreement on Tariffs and Trade (GATT),(7) the Universal Copyright Convention,(8) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).(9) Additionally, this Comment will address whether these treaties actually establish an international system of copyright protection, and whether an international system of enforcement is the most effective approach to preventing bootlegging and piracy. A. Why Anti-Bootlegging Laws and Treaties Were Developed Many commentators refer to Great White Wonder, a two-record collection of previously unreleased Bob Dylan recordings from 1961, 1967, and 1969, as the first modern-era bootleg to have an impact on the artistic and financial concerns of musicians and their record companies.(10) It was, by industry standards, a poor quality recording--containing muffled, monaural, bass-heavy sounds--and was produced on a vinyl record carrying its own audible pops and crackles.(11) But rock and roll fans of that era, particularly those enamored with the legendary Bob Dylan, were so hungry for new music that sound quality remained a secondary consideration.(12) While the album became an underground craze, neither Dylan nor his exclusive record company, Columbia, played any part in its release or gained any of its considerable profits.(13) 1. Technological Advancements in Recording Ironically, it was Bob Dylan who pointed out that "the times they are a-changin'."(14) However, this was a reflection on the social changes of the sixties and seventies,(15) not a commentary on the technological advances in recording equipment that would make bootlegging much easier--and the resulting sound quality much better--as the end of twentieth century approached.(16) The advent of the portable tape recorder, the compact disc (CD), and most recently the digital audio tape (DAT) and recordable CD--which both offer high-fidelity digital recording and the promise of no loss of fidelity in subsequent copies(17)--now play a large part in driving the bootleg music industry.(18) According to the Chief Counsel of the U.S. House Judiciary Subcommittee on Intellectual Property, the modern copyright industry has been most significantly affected by the development of digital recording technology.(19) To fully comprehend the danger of digital technology to copyright holders, it is important to distinguish it from traditional audio reproduction:(20) An analog recording involves the physical tracing of the original sound directly and continuously into grooves on the storage medium by means of a "mechanical pickup". Analog playback is accomplished by running a "stylus" [a/k/a "needle"] through the grooves and converting this movement into an electrical signal, which is then amplified. Because analog reproduction is a physical process, imperfections in the original work, such as cracks, pops and fuzz can diminish the sound quality of the copy.(21) Digital reproduction on the other hand, uses a process called digitalization, which is not susceptible to the imperfections inherent in analog recordings: Digitization is the process of electronically translating an original sound recording into a series of mathematical 1s and 0s, known as "bits," and storing these bits on some form of digital medium, such as a computer hard-drive or a compact disc. …