Archives‎ > ‎

Volume IV Issue 2 (April 2017)

Articles

1. State Responsibility and Cyberattacks: Defining Due Diligence Obligations by Ian Yuying Liu, at 191–260;

Abstract. Cyberattacks are proliferating. Live trackers record over 6 million cyberattacks daily. Information technology-dependent societies increasingly perceive cyber-threats as a destabilising force and citizens inevitably look to the State for protection. This paper concerns one form of State protection: whether States owe due diligence obligations in cyberspace under the laws of State responsibility. Specifically, it re-examines the contents of such an obligation and the circumstances which could trigger it in light of cyberattacks’ peculiarities. A straightforward replication of due diligence models from international environmental law or law of the sea is not appropriate. But cyber-diligence should incorporate certain principles found within both models and channel ultimate responsibility for securing cyber-infrastructure onto private industry. Counter-terrorism obligations are the most useful body of law in which to seek an analogy. This paper argues that a State’s cyber-diligence obligation is triggered, at a minimum, by: (1) constructive knowledge of a cyberattack, (2) which causes serious injury to an operating network. These contents and triggers define a cyber-diligence framework. Public pressure on the State and the market to intensify responses to transnational cyber-threats will drive the adoption of such principles. 

Keywords: Information Technology Law, Non-State Actors, Cyber War, National Security, Internet Governance. 

2. Current Social Obligations of Land Rights on Chinese State-Owned Land by Zhe Huang, at 261–71;

Abstract. This article critically examines social responsibilities of land rights on State-owned land in China where the State is the highest owner and regulator of land. Current social responsibilities on State-owned land are inadequate, ineffective, and distorted. Urban property rights holders do not owe sufficient social obligations to the society. Chinese State governments have abandoned and violated their social responsibilities as landowners and regulators. They abandon their regulatory responsibilities to impose and enforce social responsibilities upon property owners and land users on State-owned land. This article argues the State is justified to impose adequate social responsibilities on State-owned land. As landowners, State governments should bear certain social responsibilities to allocate land for specific social purposes. As land regulators, the State governments should impose and enforce social responsibilities on land use holders, including prohibiting unauthorized enclosure and conversion of cultivated land for non-agricultural purposes, promoting affirmative land use, protecting the environment, regulating real estate transactions and enforcing land use laws and regulations.

Keywords: Socialist Legal System, Land Use Rights, Social Legal Obligations, Granted Land Use Right, Allocated Land Use Right, Condominium Rights. 

3. The Power of Access to Information: How Involving Civil Society in Afghanistan Could Support Sustainable Transparency and Accountability to Fight Corruption by Zabihullah Obaidy, at 317-60;

Abstract. In 2015, the Afghan Government adopted the Afghan Law of Access to Information as a part of its anti-corruption efforts to increase transparency and accountability of government. Though this law signals progress and a measure of political will to fight corruption, it falls short of the requirements under international best practices regarding “Processes to Facilitate Access to Information.” To begin to remedy this problem and work toward compliance, this paper recommends that Afghanistan strengthen the processes that facilitate access to information. To this end, it suggests ideas for legislative reform, adapted from successful laws of other nations such as India, Slovenia, and Serbia. Furthermore, facilitate implementation of the law, and ultimately, facilitate access to information and increase transparency, civil society organizations can and should be engaged in training information officers, educating people, and monitoring the implementation of this law. To support this claim, this paper begins with a general overview of lack of transparency and accountability in Afghanistan, illustrating the importance of information to efforts at combatting corruption. Next, it explains Afghanistan’s obligation under international law to provide access to information, and it examines the approaches used in India, Serbia, and Slovenia. Finally, based on this analysis, it proposes amending the Afghan Law on Access to Information and engaging Civil Society Organizations to establish processes that facilitate access to information.

Keywords: Law and Development, Freedom of Information, Comparative Law, Human Rights, State-Building.

Review Article

4. The Egyptian Judiciary in the Age of the Republic: The Role of Internal Conflicts in Controlling the Judicial System by Shams Al Din Al Hajjaji, at 363-96;

Abstract. The Egyptian judiciary has struggled against the executive authority for the past decades. This struggle has seen many losses and gains. It has paved the road for the judiciary to play a role in the constitutional process in the last five years. Many scholars present this judicial struggle as a conflict between the executive and the judiciary. However, the history of the internal conflicts among judges remains a mystery or is merely implied. Such conflicts have taken on various forms based on the political regime in power. As a result, this research argues that the struggle was not only between political regimes and the judiciary, but also expressed itself in an internal conflict among the members of the judiciary. This research is limited to the Republic period, lasting from 1952 to 2014. This period can be divided into seven different eras. This research, however, separates the history of the Republic into just six main eras, due to excluding the al-Sisi era (2014-18), given that he was still in power during the writing of this research. It is historically unfair to document incomplete periods, despite this constituting one of the worst periods in judicial history. Accordingly, this paper limits itself to presenting the internal conflicts witnessed during only six eras. These eras involve the transition period after the monarchy, also known as the Mohamed Naguib era (1952-54), the Nasser era (1954-70), the al-Sadat era (1970-80), the Mubarak era (1980-2011), the SCAF era (2011-12), the Mohamed Morsi era (2012-13), and the transition period following the military coup, also known as the Mansur era (2013-14).

Keywords: Judicial Reform, Legal Reform, Comparative Law, Islamic Law, Constitutional Law.

Current Development

5. The Developments of Arbitration in Brazilian Legal System: Examining Amendments to the Brazilian Arbitration Law, the New Civil Procedure Code, and the Novelty of the Arbitral Letter by Raphaela Ladeia, at 399-423.

Abstract. In 2015, the Brazilian legislators amended the Arbitration Law and promulgated a New Civil Procedure Code. This paper focuses on the amendments and the new Code, which were imperative to end controversies addressed by the academia and case law, therefore modernizing and dynamizing the legislation. The reforms followed an international tendency to increase the use of arbitration, which is clearly beneficial for delivering fast and specialized justice. As a result, the new legislation brought Brazil to a prominent position in the international economy scene incrementing the credibility of the national arbitration institutions. The amendments to the Arbitration Law and the New Civil Procedure Code only came to force in July 2015 and March 2016, respectively. This paper delivers a significant analysis on what motivated and inspired the new legislation, its process, challenges, scope, and the most remarkable innovations, which stand out the arbitral letter. 

Keywords: Legal Reform, Development and Law, Alternative Dispute Resolution, Civil Law, Procedural Law.