Haber and Zarsky (2016). Cybersecurity for Infrastructure, A Critical Analysis
Haber, E., & Zarsky, T. (2016). Cybersecurity for Infrastructure: A Critical Analysis. Fla. St. UL Rev., 44, 515.
Abstract:
Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in a handful of sectors. Over the past few years, several novel laws and regulations addressing this emerging issue have been legislated. Yet, the overall trajectory of limited regulatory intervention has not changed. With that, the wisdom of such a limited regulatory framework must be revisited and possibly reconsidered. This Article fills an important gap in the legal literature by contributing to and promoting this debate on cyber-risk regulation of CIs, while mapping out the relevant rights, options, and interests this ‘critical’ debate entails and setting forth a regulatory blueprint that balances the relevant factors and considerations.
The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives — and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.
Haggard and Tiede (2010). The Rule of Law and Economic Growth, Where are We?
Haggard, S. and Tiede, L. (2010), The Rule of law and Economics Growth: Where Are We? 39(5) World Development, 673
Abstract:
It is widely assumed that the rule of law is essential for economic growth. However, the rule of law is clearly a multidimensional concept, encompassing a variety of discrete components from security of person and property rights, to checks on government and control of corruption. We review the theory underlying these different causal mechanisms linking the rule of law to economic growth, and provide an introduction to some outstanding measurement issues. We find that the correlation among different components of the rule of law concept are not tight among developing countries and that some inferences about the effects of property rights protection may not be warranted.
Hartman (1981). Derogation from Human Rights Treaties in Public Emergencies
Hartman, J. F. (1981). Derogation from Human Rights Treaties in Public Emergencies-A Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations. Harv. Int'l. LJ, 22, 1.
Introduction
International protection of human rights is essential in crisis situationsInternational protection of human rights is essential in crisis situationswhere states suspend basic freedoms and frequently commit massiveviolations of human rights treaties. The European Convention onHuman Rights and Fundamental Freedoms (European Convention),'and the International Covenant on Civil and Political Rights (InternationalCovenant)2 attempt to constrain states from suspending fundamentalrights through the use of specific derogation articles.3 Thisarticle will examine the theory, history, operation and interpretationof article 15 of the European Convention and article 4 of the InternationalCovenant and will also focus on the capacity of the organscreated by the treaties to handle derogation cases involving publicemergencies....
Reichman (2011). Judicial Independence in Times of War- Prolonged Armed Conflict and Judicial Review of Military Actions in Israel
Reichman, A. (2011). Judicial Independence in Times of War: Prolonged Armed Conflict and Judicial Review of Military Actions in Israel. Utah L. Rev., 63.
Introduction
Emergencies, and especially wars, challenge our intuitive approach to judicialEmergencies, and especially wars, challenge our intuitive approach to judicialindependence in two important ways. One relates to the tension between judicialindependence as a feature of separation of powers and the need to consolidatepowers in times of crisis. The other relates to the tension faced by an (independent)judiciary when the state (of which the judiciary is a part) is threatened by anexternal enemy. Part II of this Article will present these two challenges and brieflysketch their theoretical roots and possible practical implications. Part III will thenexamine the issue of judicial independence in times of war in Israel, a stateembattled in an armed conflict since its establishment and, as of 1967, faced withadministering territories inhabited by over one million residents held under aregime of belligerent occupation. The Article will demonstrate the ability of theIsraeli Supreme Court (the Court) to maintain its independence when exercisingjudicial review over the acts of the military commander in the occupied territories,as revealed by the Court's reasoning and decisions. Part IV will then outline thelimits of such independence, when particularly hard cases are presented for judicialconsideration. In conclusion, Part V will address the transnational dimension ofjudicial independence in times of war. It will suggest that the presence of theinternational and transnational community places the Israeli judiciary in a statebest described as "bounded" independence, in which the Court must navigatebetween its internal audiences (and constituencies) and the international andtransnational legal communities. The latter two may be seen as exercising a kind ofpeer review over the decisions of the Israeli Court.
Nolkaemper (2011). National Courts and the International Rule of Law
Nollkaemper, A. (2011). National courts and the international rule of law. Oxford University Press.
Abstract:
This book explores the way domestic courts contribute to the maintenance of theinternational of law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107).
This book explores what it is that international law requires, expects, or aspires that domestic courts do. Against this backdrop it maps patterns of domestic practice in the actual or possible application of international law and determines what such patterns mean for the protection of the international rule of law.
Salzberger (2017). The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective
Salzberger, E. (2017). "The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective", in Thomas Eger, Stefan Oeter, Stefan Voigt (eds.), The International Law and the Rule of Law Under Extreme Conditions, Mohr Siebeck, pp. 3-56
Abstract:
A general article that set forth an analysis of the following subjects from the perspective of law and economics: the concept of the rule of law in the international arena and in international law; the economic philosophical foundations of the theory of the state and their applicability to the international sphere and to extreme conditions; characterization of extreme conditions vis-à-vis the rule of law, including a short overview of the models put forward in the literature and also some methodological remarks for those who engage with a Law and Economics approach towards this topic.
The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective
Elkin-Koren and Salzberger (2005). The Effects of Cyberspace on the Economic Theory of the State
Elkin-Koren, N. and Salzberger E. M. (2005), "The Effects of Cyberspace on the Economic Theory of the State", in Marciano, A. and Josslin J. M (eds.) How to Shape A Democratic State, Edward Elgar, pp. 58-100.
Abstract
The book as a whole analyzes the effects of Cyberspace on the Economic Analysis of Law and argues that the networked information environment should exert a crucial influence on economic thinking, on the perception of law, and, by derivation, on the economic analysis of law. Information technologies have dramatically altered many aspects of our everyday life. They change the way we communicate with one another, the way we purchase, entertain, interact, learn, research, deliberate, do business, and indeed, think. During the past two decades the Internet has been revolutionizing economic, communal and political life. This Cyber-revolution is the most significant transformation in the information environment since the invention of printing.
Cyberspace has become an integral part of people's everyday life, and the online information environment constitutes the human condition of our time. People spend a large portion of their time using the Internet for entertainment, business, social relationships and political activities. The increasing human activity in Cyberspace is transforming social and cultural norms, creating a web of new communities, with diverse characteristics - linguistically, culturally and economically. It is beginning to blur some old boundaries across classes and social hierarchies, while at the same time drawing new borders of the digital divide, between the haves and the have nots, between those who are in command of the technology, and the technologically illiterate. The new information environment further introduces new players and novel market and non-market behaviors that cannot be easily explained by standard sociological, political or economic concepts. Cyberspace can even be thought of as affecting the definition of the self.
The concluding chapter of the book (chapter 10) focuses on political theory and offers a normative analysis of the state and its government, examining collective action, rule-making processes and the organization of the public sphere. We explore whether the new technological frontiers opened by Cyberspace bear upon the liberal theory of the state (and on the economic theory of the state). We conclude that Cyberspace shakes the paradigm of Liberal Democracy and calls for re-examination of its basic foundations: representative democracy governed by checked and controlled majority decision-making.
A by-product of this argument is an attempt to incorporate Republican theories of the state into economic analysis. The focus here is on the presupposition regarding individual preferences - whether they are exogenous, given or internal to the collective decision-making process.
Available at SSRN: https://ssrn.com/abstract=622261
Schmitt (1934 [2005]. Political theology, Four Chapters on the Concept of Sovereignty
Schmitt, C. (1934 [2005]), Political Theology: Four Chapters on the Concept of Sovereignty, George D. Schwab, trans., University of Chicago Press.
Abstract:
Written in the intense political and intellectual tumult of the early years of the Weimar Republic, Political Theology develops the distinctive theory of sovereignty that made Carl Schmitt one of the most significant and controversial political theorists of the twentieth century.
Focusing on the relationships among political leadership, the norms of the legal order, and the state of political emergency, Schmitt argues in Political Theology that legal order ultimately rests upon the decisions of the sovereign. According to Schmitt, only the sovereign can meet the needs of an "exceptional" time and transcend legal order so that order can then be reestablished. Convinced that the state is governed by the ever-present possibility of conflict, Schmitt theorizes that the state exists only to maintain its integrity in order to ensure order and stability. Suggesting that all concepts of modern political thought are secularized theological concepts, Schmitt concludes Political Theology with a critique of liberalism and its attempt to depoliticize political thought by avoiding fundamental political decisions.
https://www.press.uchicago.edu/ucp/books/book/chicago/P/bo3649910.html
Svensson-McCarthy (1998). The International Law of Human Rights and States of Exception
Svensson-Mccarthy, A. (1998), The international law of human rights and states of exception, Martinus Nijhoff Publishers.
Abstract:
This study demonstrates the extensive protection that international law provides to human rights even in the most serious of emergencies when they are particularly vulnerable. Based on a meticulous analysis of preparatory works and practice under the International Covenant on Civil and Political Rights, as well as the American and European Conventions on Human Rights, and with a special chapter on the International Labour Organisation's approach to international labour standards and emergencies, this book shows that respect for the rule of law and the concept of a democratic society are controlling parameters in any valid limitation on the enjoyment of human rights. It further shows that respect for human rights and the operation of institutions such as the Legislature and Judiciary are crucial to enabling societies to address and eventually remedy the root causes of emergency situations. The study recommends possible directions for the development of case law and suggests some practical means to help ensure that international legal requirements are in fact respected in emergencies.
Secretary-General, U. N. (2004). The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies
Secretary-General, U. N. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2004/616 (Aug. 23, 2004).
Abstract:
Recent years have seen an increased focus by the United Nations on questions of transitional justice and the rule of law in conflict and post-conflict societies, yielding important lessons for our future activities. Success will depend on a number of critical factors, among them the need to ensure a common basis in international norms and standards and to mobilize the necessary resources for a sustainable investment in justice. We must learn as well to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations. Effective strategies will seek to support both technical capacity for reform and political will for reform. The United Nations must therefore support domestic reform constituencies, help build the capacity of national justice sector institutions, facilitate national consultations on justice reform and transitional justice and help fill the rule of law vacuum evident in so many post-conflict societies.
Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities. Approaches focusing only on one or another institution, or ignoring civil society or victims, will not be effective. Our approach to the justice sector must be comprehensive in its attention to all of its interdependent institutions, sensitive to the needs of key groups and mindful of the need for complementarity between transitional justice mechanisms. Our main role is not to build international substitutes for national structures, but to help build domestic justice capacities.
In some cases, international or mixed tribunals have been established to address past crimes in war-torn societies. These tribunals have helped bring justice and hope to victims, combat the impunity of perpetrators and enrich the jurisprudence of international criminal law. They have, however, been expensive and have contributed little to sustainable national capacities for justice administration. The International Criminal Court offers new hope for a permanent reduction in the phenomenon of impunity and the further ratification of its statute is thus to be encouraged.
But while tribunals are important, our experience with truth commissions also shows them to be a potentially valuable complementary tool in the quest for justice and reconciliation, taking as they do a victim-centred approach and helping to establish a historical record and recommend remedial action. Similarly, our support for vetting processes has shown them to be a vital element of transitional justice and, where they respect the rights of both victims and the accused, key to restoring public trust in national institutions of governance. Victims also benefit from well-conceived reparations programmes, which themselves help ensure that justice focuses not only on perpetrators, but also on those who have suffered at their hands. Strengthening United Nations support in all these areas will require efforts to enhance coordination among all actors, develop our expert rosters and technical tools and more systematically record, analyse and apply these lessons in Security Council mandates, peace processes and the operations of United Nations peace missions.