The Evolution of a Hostile Cyberspace and Why You Should Care

The Evolution of a Hostile Cyberspace and Why You Should Care

  1. Crime and War to Replace Smileys and Hearts?

Cyberspace provides a basic infrastructure for work, reading news and sending hearts and smileys on social media. If you hear the words “cyberspace” and “cyber attacks” it might bring to mind a science fiction-like scene of aliens battling with code somewhere in the matrix. ‘Cyberwar’ may not be a concern to you at the moment. The reality is that cyberspace could soon be concerned with more weapons than smileys.

The statistics speak for themselves: in 2017 an estimate of 611,141 web attacks were blocked every day[1] and the cost of global cybercrime in 2017 is estimated to $ 600 billion.[2] The persons behind these attacks and crimes are mostly criminals and vigilantes. These are scary private actors, but enhancing the capability of cyber law enforcement may arguably control them. State actors targeting each other through hostile cybermeans is to many a much more unnerving trend.[3] This hostile state practice and its implications could be one of the greatest challenges facing our generation of leaders. And yet, it seems like it is a task that neither our leaders nor the civil society is prepared to discuss or handle in a conscientious way.[4]

The knowledge gap between what the average person knows about cybersecurity and cyberwarfare, and what is actually happening, should be a concern to everyone. In this blog post, I will first explain what cyberspace is and what law applies. Next, I will turn to some examples of infamous cyberattacks involving state actors and then comment on current cyber strategies adopted by states to meet these threats. Finally, I will present some thoughts about the problem of the cyber-knowledge gap and the way forward for law in cyberspace.

  1. What is Cyberspace and What Law Applies?

There is no universally agreed upon definition of what constitutes “cyberspace.”[5] The Pentagon has tried to define it and has so far come up with cyberspace as “the global domain within the information environment consisting of the interdependent network and information technology infrastructures, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers.”[6] This term is both so broad and incomprehensible that, for most of us, we might as well continue to coin the term like the novelist Gibson did in the Neuromancer, as “a consensual hallucination experienced daily by billions of legitimate operators…”[7]

Defining the space where it all happens is hard enough. Defining what international legal norms should apply has not only proven to be hard, but many nations do not even want to. For differing reasons, China, Cuba and Russia do not acknowledge that international law and the right to self-defense necessarily applies to cyberspace.[8] This was made clear during the now dead in the water UN negotiations concerning what legal norms apply in cyberspace.[9] Other nations, like the US and UK, acknowledge the application of international law in cyberspace, but refrain from taking a stance that most of the stuff happening in cyberspace rises to the level of unlawful breach of sovereignty.[10] This school of thought has been termed the school of “sovereignty as a principle,”[11] whilst others, perhaps especially those rooting for the application of the soft law principles of the Tallinn Manual[12], belong to the school of what we may call “sovereignty as a rule.”[13]

The “sovereignty as a principle” school is likely the most pragmatic approach as state practice within cyberspace is still in its infancy. It allows flexibility for what are considered “legal responses” to the most frequent cyber incidents, as long as they are defined in the “grey zone” not rising to the level of illegal interference or intervention.[14] At the same time, it may be argued that this approach first and foremost favours the state actors on the scene of international cyberwarfare that has the capability of deterring these incidents in a meaningful way. For the nations that do not have the capability of responding in cyberspace it may be better to be able to point to a breach of sovereignty and respond with non-cyber countermeasures. On the other hand, allowing non-cyber countermeasures to cyberattacks rising to the level of intervention or interference could lead to unwanted escalation of hostilities.

The downside of keeping it pragmatic is that without clear rules of what is and is not accepted state action in cyber space, we might end up with a fearful virtual society favouring the strongest states. The capabilities of cyberweapons become more powerful and sophisticated by the minute. As we shall see in some examples below, the attackers are hard to identify and for many nations it is impossible to respond by cybermeans.

3. Stuxnet and Estonia: Cyber Weapons With Real-World Consequences

Examples of cyberhacks and cybercrime are myriad. Cyberwars and weapons are not. This may both be due to the covert nature of the cyber military operations, but also due to the fact that these hostilities and capabilities are still developing. However, there are a few notable exceptions.

The first example of a large-scale cyberweapon with real-world consequences is the infamous “Stuxnet”-malware targeting the Iranian nuclear facilities.[15] The malicious code (malware) infected the computers controlling a part of the nuclear program causing them to self-destruct by making the centrifuges speed up or slow down.[16] It successfully took down almost a thousand centrifuges (P-1 machines) by simply manipulating software.[17] European security consultants detected Stuxnet in 2010 when the malware infected thousands of computers running the same operating system as the one it was meant to target. It was so sophisticated that it did not cause actual harm anywhere, but the nuclear facility in Iran.[18] The cyberweapon was allegedly created by the NSA and the Israeli intelligence agency as part of operation “Olympic Games.”[19] The security analyst part of the team that exposed Stuxnet stated that the malware was all about “destroying its targets with utmost determination in military style.”[20] What Stuxnet shows us is that a cyberweapon may in itself consist of mere code, but can cause significant real-world damage to essential infrastructure and business. Former CIA Director, Michael Hayden, stated that Stuxnet was a ”game changer” and went so far as to compare its implications to that of Hiroshima in 1945.[21] Whether or not people agree to the latter statement, they probably do agree that capabilities of weapons like Stuxnet can only improve and that we are already part of a cyber arms race.[22]

Another example of cyberweapons that had notable real-world consequences is the attack on Estonia in 2007. The “hacktivist”[23], or as some say “cyber terrorist,”[24] attack on Estonian governmental functions remains one of the most notorious cyberattacks in Europe so far. The attack came as a response to the decision to relocate a statue in tribute to the Soviet liberation of Estonia from the Nazis.[25] The Russian minority in Estonia reacted with an uproar that included cyberattacks on key governmental and economic institutions.[26] The Estonian society was, at the time, one of the most digitally progressed societies in the world as they relied heavily on cyberspace when developing their own public and private institutions after the fall of the Soviet Union.[27] This vulnerability enabled the cyberattackers[28] to paralyze vital governmental and economic institutions for weeks on end by targeting the media, intergovernmental communications, and online banks.[29]  Ten years after the Estonian attack, an Estonian cyber defense expert stated that a major difference between cyberattacks and kinetic force is that a cyberattack “allow you to create confusion, while staying well below the level of an armed attack. Such attacks are not specific to tensions between the West and Russia. All modern societies are vulnerable.”[30]

These are just some examples of how cyberweapons is becoming a part of state practice and warfare. Below we shall see how different state actors have responded to this threat in different ways.

4. Cyber Strategies: is ‘Offense by Defense’ the Best Way Forward?

Governments all over the world experience cyber hostilities on a daily basis. The “cyber threat” is on the top of most governmental agendas though few leaders can truly say they understand its ramifications. It took the US government 15 years to finally present a brand new National Cyber Security Strategy this September.[31] To get some perspective of how “long” 15 years is in cyberspace, it is worth reminding ourselves that this means the last strategy was launched a whole four years before the first iPhone came.[32] For those of you who feel like that is just like yesterday, it certainly does not feel like that to the “digital” generation.

This new US cyber strategy carries one major message to other state actors: the gloves are off – we will “defend forward” to deter malicious actors.[33] In other words, offense is the new defense. Some critics have pointed out that this aggressive strategy may remove critical resources from defending essential infrastructure from attack and lead to unnecessary escalation of hostilities.[34] Others, like the former Director of the National Security Agency, Admiral Michael Rogers, firmly hold that the aggressors in cyberspace will not be deterred by anything less than a firm and rapid response.[35] With the memories of meddling in the 2016 US presidential elections by Russian actors still fresh in mind, you may sympathize with this combative approach.

At the same time, it is important to keep in mind that a national cyber strategy need not be first and foremost aggressive. The European Union approach is an example of this.[36] Although the EU is not a military power with a common defense for Europe, the Union is still an important actor in Cyberspace, particularly regarding the importance of a common trade market.[37] Their cyber strategy, first published in 2013 and renewed in 2017, emphasizes the importance of building a safe, prosperous, and open cyberspace relying on fundamental rights and freedoms.[38]

The EU and US are longstanding allies. Despite their different approaches in cyberspace they will likely remain cyberfriends. China is another story all together. China is one of four states explicitly coined as long-term strategic threats to the US and its allies in the new US strategy.[39] A Chinese cybersecurity analyst recently commented upon the cyber strategy and expressed concerns about how “defending forward” may look a lot like early attack for the ones experiencing the “defense”.[40] She compared the situation of power balance in cyberspace to the one of the Cold War, warning that we are at a crossroads in cyberspace where “one route may point toward achieving general stability, while the other may lead to chaos and conflict”.[41]

The question one might ask in light of this discussion is what legal order de lege ferenda we should or should not work towards in cyber space. Although the UN effort to reach consensus on cyber space regulation did not succeed, there are other attempts to facilitate state cooperation on cyber legal norms in the making.[42] Should it be a lawless space for the survival of the fittest or should we adopt the existing framework of international law applicable for the use of force and in armed conflict? Or should we instead aim for completely new norms and principles adopted through a treaty? And perhaps more importantly, are the stakeholders capable of discussing the technical nature of cyberspace and cyberwarfare in a meaningful way?

Hope for a Peaceful Cyberspace and the Need for Cyber Knowledge

The rules that govern the use of force and the conduct of war in the ‘real world’ originate from hundreds of years of custom and treaties. Meanwhile, much of the emerging hostilities may utilize cyberweapons with both cyber and real-world consequences. As noted above, without clear rules of state action in cyberspace, one could ask whether we are moving in the wrong direction, towards a state practice of “the survival of the fittest” approach. Cyberweapon capabilities are not, as far as we know, anywhere close to the danger that nuclear weapons present. Yet, Stuxnet showed us that hatching cyberweapons with the capability of disruption of essential infrastructure was already a reality in 2005.[43] Without the will to regulate the attacks happening in cyberspace, one may end up with a fearful international community reminiscent of the Cold War. Or perhaps even more fearful, as the problem of attribution in cyberspace keeps the attacker in the dark and the victim in the unknown.[44]

Internationalists remain hopeful that we will reach a consensus on cyber legal norms that aim for a peaceful coexistence in this space by prohibiting the use of force. In the event it is not possible for states to coexist peacefully, then the law of armed conflict must make it clear that virtual civilian life and infrastructure is as well worth protecting as they are in the ‘real’ world.

Cynical minds might argue that there is no point in trying to establish international law in cyberspace when many states do not even comply with existing custom and conventions in the ‘real’ world. That the idea of international rule of law is just as much a hallucination as Gibson deemed cyberspace to be in 1984. Of course, they do have a point. All sides of the conflict in Yemen and Syria prove this point everyday. The western and eastern nations fighting and funding the wars demonstrate disregard and distain for the law of armed conflict and the value of human life as civilians are slaughtered[45] and children starve in the thousands[46].

It is true that many states do not comply with the rules, but the point still stands. It is worth aspiring for an international legal order in cyberspace. In spite of our daily news feed, international law is more often respected than not.[47] History has also shown us that adversaries can go from hostile competition to peaceful cooperation, just as US and Russia did with the outer space program.[48] It is better to strive for a cyber rule of law where some states comply, than none at all. Real-world consequences emerge from actions in cyberspace. If we create rules we may legitimately expose breaches of them, and hope that this leads to more civil conduct and the de-escalation of emerging conflicts.

Whatever the major players in the field of cyber-international relations decide, we should all, as citizens of the virtual world, be able to understand cyberspace in order to hold our governments accountable – and at the moment we do not.[49] The term “cyber threats in cyberspace” probably still produce a little sci-fi feeling for us all. Both public and private institutions need to take steps to close the cybersecurity knowledge gap. If not, we will end up with a world where only the techy people speak the language of power and influence.

[1] Statista. Global number of web attacks blocked per day from 2015 to 2017 (in 1,000s). (2018), https://www.statista.com/statistics/494961/web-attacks-blocked-per-day-worldwide/. [Cited 12/01/2018]

[2] Lewis, James. ”Report: Economic Impact of Cybercrime—No Slowing Down”, McAfeee and the Center for Strategic and International Studies (CSIS), (2018), p. 4. [https://www.mcafee.com/enterprise/en-us/forms/gated-form.html?docID=5fee1c652573999d75e4388122bf72f5&tag=ec&eid=18TL_ECGLQ1_CT_WW&elqCampaignId=23163] [Cited: 11/13/2018]

[3] Wheeler, Tara. ”In Cyberwar There are no Rules,” ForeignPolicy.com, 09/12/2018. [https://foreignpolicy.com/2018/09/12/in-cyberwar-there-are-no-rules-cybersecurity-war-defense/] [Cited 11/13/2018]

[4] Singer, P.W and Allan Friedman. Cybersecurity and Cyberwar – What Everyone Needs to Know, New York, Oxford University Press, 2004, p. 4.

[5] As far as I have been able to understand through my research.

[6] Singer, P.W and Allan Friedman. Cybersecurity and Cyberwar – What Everyone Needs to Know, New York, Oxford University Press, 2004, p. 13.

[7] Gibson, William. Neuromancer. New York, ACE Books, 1984, p. 51.  See also Shachtman, Noah. ”26 years after Gibson, Pentagon Defines ’Cyberspace,’” Wired, 05/23/08. [https://www.wired.com/2008/05/pentagon-define/] [Cited: 12/14/2018]

[8] Bowcott, Owen. ”Dispute along cold war lines led to collapse of UN cyberwarfare talks”, The Guardian, 08/23/017. [https://www.theguardian.com/world/2017/aug/23/un-cyberwarfare-negotiations-collapsed-in-june-it-emerges] [Cited 12/01/2018].

[9] Schmitt, Michael and Liis Vihul. “International Cyber Law Politicized:  The UN GGE’s Failure to Advance Cyber Norms”, Justsecurity.com, 06/30/2017. [https://www.justsecurity.org/42768/international-cyber-law-politicized-gges-failure-advance-cyber-norms/] [Cited: 12/01/2018]

[10] Waxman, Matthew. ”U.K. Outlines Position on Cyberattacks and International Law,” Lawfareblog, 05/23/2018. [https://www.lawfareblog.com/uk-outlines-position-cyberattacks-and-international-law] [Cited 12/01/2018]

[11] Schmitt, Michael. ”In Defense of Sovreignty in Cyberspace,” Justsecurity, 05/08/2018. [https://www.justsecurity.org/55876/defense-sovereignty-cyberspace/] [Cited: 12/12/2018]

[12] Schmitt, Michael N. Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Rhode Island, Cambridge University  Press, 2017.

[13] Watts, Sean and Theodore T. Richard. ”Baseline Territorial Sovereignty and Cyberspace,” Lewis & Clark Law Review, 03/16/2018. Available at SSRN: https://ssrn.com/abstract=3142272, p. 856-858.

[14] See e.g. Schmitt, Michael. ”In Defense of Sovreignty in Cyberspace,” Justsecurity, 05/08/2018. [https://www.justsecurity.org/55876/defense-sovereignty-cyberspace/] [Cited: 12/12/2018]

[15] Singer, P.W and Allan Friedman. Cybersecurity and Cyberwar – What Everyone Needs to Know, New York, Oxford University Press, 2004, p. 115.

[16] Ibid, p. 116.

[17] Broad, William J, John Markoff and David E. Sanger. ”Israeli Test on Worm Called Crucial in Iran Nuclear Delay,” The New York Times, 01/15/2011. [https://www.nytimes.com/2011/01/16/world/middleeast/16stuxnet.html] [Cited: 12/05/2018]

[18] Singer, P.W and Allan Friedman. Cybersecurity and Cyberwar – What Everyone Needs to Know, New York, Oxford University Press, 2004, p. 116.

[19] Ibid, p. 118.

[20] Broad, William J, John Markoff and David E. Sanger. ”Israeli Test on Worm Called Crucial in Iran Nuclear Delay,” The New York Times, 01/15/2011. [https://www.nytimes.com/2011/01/16/world/middleeast/16stuxnet.html] [Cited: 12/05/2018]

[21] Shinkman, Paul D. ”Former CIA Director: Cyber Attack Game-Changers Comparable to Hiroshima,” US News, 02/20/2013. [https://www.usnews.com/news/articles/2013/02/20/former-cia-director-cyber-attack-game-changers-comparable-to-hiroshima] [Cited: 02/12/2018].

[22] Singer, P.W and Allan Friedman. Cybersecurity and Cyberwar – What Everyone Needs to Know, New York, Oxford University Press, 2004, p. 118.

[23] Herzog, Stephen. ”Revisiting the Estonian Cyber Attacks: Digital Threats and Multinational Responses,” Journal of Strategic Security, Vol. 4, No. 2: 49-60, 2011. p. 49. [Available at SSRN: https://ssrn.com/abstract=2807582]

[24] Richards, Jason. ”Denial-of-Service: The Estonian Cyberwar and Its Implications for U.S. National Security,” International Affairs Review at Elliot School of International Affairs George Washington University, Volume XVIII, No. 1: 2009. [http://www.iar-gwu.org/node/66]

[25] Herzog, Stephen. ”Revisiting the Estonian Cyber Attacks: Digital Threats and Multinational Responses,” Journal of Strategic Security, Vol. 4, No. 2: 49-60, 2011. p. 50. [Available at SSRN: https://ssrn.com/abstract=2807582]

[26] Ibid.

[27] Dycus, Stephen et. al.  National Security Law, 6 th Edition, Aspen Publishers, 2016, p. 447.

[28] The attacks were for the most Distributed Denial of Service Attacks, (DdoS), which entails flooding the targeted websites with fake access requests effectively prohibiting the access of real requests.

[29] Dycus, Stephen et. al.  National Security Law, 6 th Edition, Aspen Publishers, 2016, p. 447.

[30] McGuinness, Damien. ”How a cyber attack transformed Estonia,” BBC News, 04/27/2017. [https://www.bbc.com/news/39655415] [Cited 12/05/2018]

[31] US Department of Defense. White House Releases First National Cyber Strategy in 15 Years. https://dod.defense.gov/News/Article/Article/1641969/white-house-releases-first-national-cyber-strategy-in-15-years/ (09/21/2018).  [Cited 11/03/2018]

[32] Ritchie, Rene. ”11 years ago today, Steve Jobs introduced the iPhone,” iMore, 01/09/2018. [https://www.imore.com/history-iphone-original] [Cited: 10/14/2018]

[33] US Department of Defense. Summary of Department of Defense Cyber Strategy. (2018), p. 1. [https://media.defense.gov/2018/Sep/18/2002041658/-1/-1/1/CYBER_STRATEGY_SUMMARY_FINAL.PDF] [Cited: 11/12/2018]

[34]Wolff, Josephine. ”Opinion: Trumps Reckless Cybersecurity Strategy,” The New York Times,10/0272018. [https://www.nytimes.com/2018/10/02/opinion/trumps-reckless-cybersecurity-strategy.html]

[35] Rogers, Michael. Public speaking event hosted by Center for Security Research and Education at Penn State Law. State College, 11/13/2018.

[36] European Commission. Cybersecurity package ‘Resilience, Deterrence and Defence: Building strong cybersecurity for the EU’. (2018), https://ec.europa.eu/digital-single-market/en/news/cybersecurity-package-resilience-deterrence-and-defence-building-strong-cybersecurity-eu [Cited: 10/14/2018]

[37] Bleiberg, Joshua and Darrell M. West. ”The benefits of a Digital Single Market in Europe and the United States,” Brookings Techtank Blog, 06/17/2015. [https://www.brookings.edu/blog/techtank/2015/06/17/the-benefits-of-a-digital-single-market-in-europe-and-the-united-states/] [Cited: 11/12/2018]

[38] European Commission, General Secretary. (2017)  Resilience, Deterrence and Defence: Building strong cybersecurity for the EU, 09/13/2017. [https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1505294563214&uri=JOIN:2017:450:FIN] [Cited 11/17/2018]

[39] US Department of Defense. Summary of Department of Defense Cyber Strategy. (2018), p. 1. [https://media.defense.gov/2018/Sep/18/2002041658/-1/-1/1/CYBER_STRATEGY_SUMMARY_FINAL.PDF] [Cited: 11/12/2018]

[40] Jinghua, Lyu. ”A Chinese Perspective on the Pentagon’s Cyber Strategy: From ‘Active Cyber Defense’ to ‘Defending Forward,’” Lawfareblog, 10/19/218. [https://www.lawfareblog.com/chinese-perspective-pentagons-cyber-strategy-active-cyber-defense-defending-forward] [Cited: 12/02/2018]

[41] Ibid.

[42] Schmitt, Michael and Liis Vihul. “International Cyber Law Politicized:  The UN GGE’s Failure to Advance Cyber Norms”, Justsecurity.com, 06/30/2017. [https://www.justsecurity.org/42768/international-cyber-law-politicized-gges-failure-advance-cyber-norms/] [Cited: 12/01/2018]

[43] Zetter, Kim. ”An Unprecedented Look at Stuxnet, the World’s First Digital Weapon,” Wired, 11/03/2014. [https://www.wired.com/2014/11/countdown-to-zero-day-stuxnet/] [Cited 12/01/2018]

[44] Singer, P.W and Allan Friedman. Cybersecurity and Cyberwar – What Everyone Needs to Know, New York, Oxford University Press, 2004, p. 150.

[45] Reuters. ”Syrian Observatory says war has killed more than half a million,” Reuters, 03/12/2018.[https://www.reuters.com/article/us-mideast-crisis-syria/syrian-observatory-says-war-has-killed-more-than-half-a-million-idUSKCN1GO13M] [Cited 12/01/2018]

[46] Karasz, Palko. ”85,000 Children in Yemen May Have Died of Starvation,” The New York Times, 11/21/2018. [https://www.nytimes.com/2018/11/21/world/middleeast/yemen-famine-children.html] [Cited: 12/1/2018] See also: Elbagir, Nima et. al. ”Made in America Shrapnel found in Yemen ties US bombs to string of civilian deaths over course of bloody civil war,” CNN, 09/2018. [https://www.cnn.com/interactive/2018/09/world/yemen-airstrikes-intl/] [Cited 12/01/2018]

[47] ICRC. Frequently asked questions on the rules of war. (2016), https://www.icrc.org/en/document/ihl-rules-of-war-FAQ-Geneva-Conventions [Cited: 14/12/2018]

[48] Kruger, Hanna. ”In Space, U.S. and Russia Friendship Untethered,” NBC News, 09/30/2017.  [https://www.nbcnews.com/news/us-news/space-u-s-russia-friendship-untethered-n806101] [Accessed 12/12/2018]

[49] Sanger, David E. ”The age of cyberwar is here. We can’t keep citizens out of the debate,” The Guardian, 07/28/2018. [https://www.theguardian.com/commentisfree/2018/jul/28/cyberwar-age-citizens-need-to-have-a-say] [Cited: 12/06/2018]

Gravity Trade Model Theory and the King’s Highway Help Explain Regional Economic Impact of the Syrian Civil War

Gravity Trade Model Theory and the King’s Highway Help Explain Regional Economic Impact of the Syrian Civil War

The Syrian civil war, birthed out of the 2011 Arab Spring, has rattled the country’s government, society, infrastructure, and economy. The destruction, as a result of political violence and warfare, has set the country back in terms of gross domestic product (GDP) as output has been interrupted. According to the World Bank, from 2011 until the end of 2016, “the cumulative losses in GDP have been estimated at $226 billion,” or about four times the country’s GDP in 2010.[i] The economies of its neighbors, including Jordan and Lebanon, have also felt the effect of war. Violence perpetrated by rebel factions, the Islamic State of Iraq and Syria (ISIS), and the Syrian Arab Army (SAA) have disrupted significant trade routes through Syria that lead to Jordan, Iraq, and Lebanon. In 2015, violence broke out between groups in Syria along the border of Jordan. As a measure of security, Jordan closed the Nasib crossing which connects the countries via the King’s Highway – one of the oldest and most significant trading routes in the region.[ii] The closure of the border meant that inter-regional trade became difficult and costly, putting increased pressure on economies that rely on imports to meet the needs of its citizens and export revenue for economic growth. However, the recent reopening of the border will make trade easier and less expensive as well as begin to revitalize economies that have suffered from regional conflict.

The King’s Highway that runs north and south through Jordan connecting to major highways in Egypt, Syria, Lebanon, and Iraq, is one of the oldest trading and communication routes in the world (pictured). First mentioned in the Old Testament of the Bible, the road was later co-opted in the 1st century by the Roman emperor, Trajana, who named it the “Via Nova Traiana.”[iii] Approximately 208 miles (335 kilometers) long, the King’s Highway connected the capital of the Roman Empire’s new province of Arabia, Busra (in modern day Syria), and Aqaba (bordering the Red Sea in the southwest of Jordan).[iv] Additionally, the highway intersected with the Silk Road and with the deterioration of the Roman Empire, Arabian powers used this intersection to trade goods with Asia.[v] It has also been used as a route for migrants and those taking hajj (Muslim pilgrimage) from Iraq, Lebanon, and Syria to Saudi Arabia. Today, the highway is used to trade goods throughout the Middle East, including the Levant, the Gulf, North Africa, and Turkey.

While it may seem like a stretch to argue that closing one of the oldest ground transportation trading routes in the world has had an impact on the economies across the region, international trade theory and the data that supports it suggests otherwise. It is important to note that disrupted trade patterns throughout the Syrian crisis are not the sole or leading factor in a decreased GDP per capita, but it explains a small portion of the problem. Issues concerning the economy, in the context of the Middle East, are the result of war and violence, low rates of labor force participation, a lack of jobs, and resource scarcity.

The international trade theory under question is the ‘gravity model’ of international trade. Derived from Sir Isaac Newton’s theory of gravitation, the gravity model of trade assesses the size of “bilateral trade flows” between countries based on their economic size and geographic proximity.[vi] In other words, bilateral trade between countries is proportional to their respective GDP’s (economic size) and “inversely proportional to the geographic distance between them.”[vii] The negative relationship between geographic proximity and trade means that as distance (km or mi) decreases trade increases and as distance increases trade decreases. Therefore, countries will experience an increased cost to trade with partners that are geographically further in distance and a decrease in trade costs with countries that are geographically closer. Moreover, while the model might seem to suggest that countries with large GDP’s might only trade with each other, it actually explains that country A will trade with country B proportional to country A’s economic size, regardless of country B’s economic size.[viii] For the purposes of this case study, however, we will be looking at distance as a factor of the cost of trade in the Middle East amidst turmoil in Syria.

The Lebanese economy has been one of the biggest losers in terms of exports throughout the region as a result of the Syrian crisis. In the past, Lebanon has relied on the affordability of trading goods on the ground through Syria, but because of regional hostilities many of its routes have been closed. The closing of the Nasib Border crossing on the Jordan – Syrian border has proved to be an immense set back in terms of exporting goods from Lebanon to Jordan, Egypt, and the Gulf – its biggest markets importing over half of Lebanon’s exports. Upon closure of the crossing in 2015, Lebanese markets were forced to export goods by way of the sea, an expensive and time-consuming way of transporting goods. With increased costs in shipping, the Lebanese government applied subsidies totaling $15 million to offset costs and encourage inter-regional trade. However, exports continued to suffer valuing at $3 billion in 2017, it’s lowest figure since violence erupted with Israel in 2007.[ix] In the first year of the closure of the Nasib, Lebanese export revenue decreased by approximately $1 billion.[x] Since the onset of the Syrian crisis, Lebanon’s GDP per capita has also taken a hit dropping from approximately $9,000 per capita in 2012 to about $8,250 per capita in 2016.[xi]

The impact of the Syrian crisis on Jordan’s economy is just as daunting, especially because the Kingdom relies on imports to meet the needs of its citizens and growing refugee population. The choking of trade routes caused a decline in agricultural exports and imports by 25% and 30% respectively.[xii] Annually, Jordan experiences a trade deficit of approximately $10-$14 billion and has a national debt equivalent of 95% of its GDP as of 2017, a 30% increase from nine years earlier.[xiii] In 2014, exports to Syria and Iraq included $500 million worth of goods, which is $900 million less than 2010 before the war started.[xiv] According to the Washington Institute, however, exports from Jordan through the reopening of the Nasib Crossing would yield little results in terms of economic benefits, since the Kingdom mainly imports from countries to its north via the King’s Highway. Therefore, Jordan should look to increase trade to Gulf States, including Saudi Arabia, which contributes to about 10 – 12% of its overall exports. The opening of the crossing is more beneficial to Gulf States and Egypt as trade via the King’s Highway from these countries were valued at $14.6 billion in 2011 but have since dropped to $5.3 billion.[xv]

It is important to note that the country that has suffered the most overall is Syria. According to the United Nations Economic and Social Commission for Western Asia (UNESCWA), the estimated destruction in physical capital and sectoral distribution is over $388 billion, “while the actual physical cost of destruction [is] close to $120 billion.”[xvi] Syria’s GDP before the war began was approximately $60 billion and by 2016 it dropped to about $15 billion. Even more, oil GDP decreased by 93%, while hydrocarbon production dipped to 10,000 barrels per day from 383,000 barrels per day in 2010.[xvii] This is mostly due to the fact that non-state actors and Kurdish forces have seized the means of oil production from the Syrian government.

Albeit one road, the King’s Highway has a significant impact on the economies of the Middle East. It connects trading routes from Egypt to Turkey and is responsible for the transportation of billions of dollars of goods. By connecting the region geographically, it has inherently connected the regions’ economies. After closing the Nasib border crossing between Jordan and Syria, the ability to trade goods across the region inexpensively via the King’s Highway became virtually impossible, forcing governments to subsidize their economies to incentivize trade by way of the sea. The gravity model helps explain the significance of bilateral trade in the Middle East via the King’s Highway. Lebanon and Jordan were most notably affected by the closing as it resulted in losses of GDP per capita, created greater trade deficits, and increased national debts. While Gulf countries saw a decrease in export revenues, their sovereign wealth funds are well-endowed to subsidize economic sectors that suffered from regional conflict. When rebuilding Syria’s economy, implementing policies of trade openness will allow Syria to freely export oil and import goods from regional partners with fewer barriers. Maximizing gravity via the King’s Highway will not only help to rebuild Syria’s economy, but also restore losses in export revenues by its neighbors.

 

[i] The World Bank. “The Toll of War: The Economic and Social Consequences of the Conflict in Syria.” The World Bank. 2017. https://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economic-and-social-consequences-of-the-conflict-in-syria.

[ii] Reed, John. “Closure of Syria’s Last Border Crossing Hits Jordan Economy.” Financial Times, April2015. https://www.ft.com/content/c0df376a-dd27-11e4-a772-00144feab7de.

[iii] The Editors of Encyclopaedia Britannica, ed. “King’s Highway: Ancient Road, Middle East.” Encyclopædia Britannica, Inc. 2018. https://www.britannica.com/topic/Kings-Highway; Atlas Tours. “The Kings’ Highway, Jordan.” Atlas Tours. 2018. https://atlastours.net/jordan/kings-highway/.

[iv] ibid

[v] The Editors of Encyclopaedia Britannica, ed. “Silk Road: Trade Route.” Encyclopædia Britannica, Inc. 2018. https://www.britannica.com/topic/Kings-Highway.

[vi] Economics Online. “Gravity Theory of Trade.” Economics Online. 2018. http://www.economicsonline.co.uk/Global_economics/Gravity_theory_of_trade.html.

[vii] Chaney, Thomas. “The Gravity Equation in International Trade: An Explanation”2011. https://www.tse-fr.eu/sites/default/files/medias/doc/by/chaney/distance.pdf.

[viii] ibid

[ix] Cornish, Chloe. “Reopening of Syrian-Jordan Border Revives Regional Trade.” Financial Times, October2018. https://www.ft.com/content/e580c1a6-d6de-11e8-aa22-36538487e3d0.

[x] FRED Economic Data. “Exports of Goods and Services for Lebanon.” Federal Reserve Bank of St. Louis, November 2018. https://fred.stlouisfed.org/series/LBNBXUSD

[xi] The World Bank. “GDP Per Capita (Current US$).” The World Bank. 2018. https://data.worldbank.org/indicator/NY.GDP.PCAP.CD?end=2017&locations=JO-LB-IQ-SY&start=2011&view=chart.

[xii] Saif, Ibrahim. “Impact of Syrian Crisis on Jordan.” The Jordan Times, August 12014.

[xiii] Fishman, Ben. “Taking It Slow at Jordan’s Nasib Border Crossing with Syria.” The Washington Institute. 2018. https://www.washingtoninstitute.org/policy-analysis/view/taking-it-slow-at-jordans-nasib-border-crossing-with-syria; Trading Economics

[xiv] Trading Economics. “Jordan Government Debt to GDP.” Trading Economics. 2018. https://tradingeconomics.com/jordan/government-debt-to-gdp.

[xv] Fishman, Ben. “Taking It Slow at Jordan’s Nasib Border Crossing with Syria .” The Washington Institute. 2018. https://www.washingtoninstitute.org/policy-analysis/view/taking-it-slow-at-jordans-nasib-border-crossing-with-syria; Trading Economics

[xvi] United Nations. “Experts Discuss Post-Conflict Reconstruction Policies after Political Agreement in Syria.” United Nations Economic and Social Commission for Western Asia. 2018. https://www.unescwa.org/news/syrian-experts-discuss-post-conflict-reconstruction-policies-after-political-agreement-syria.

[xvii] The World Bank. “The Toll of War: The Economic and Social Consequences of the Conflict in Syria.” The World Bank. 2017. https://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economic-and-social-consequences-of-the-conflict-in-syria.

“The EU Takes One Step Forward, Two Steps Back in Digital Copyright Reform”

The EU Takes One Step Forward, Two Steps Back in Digital Copyright Reform

By Lexi Thiel

On September 12, the European Union (EU) Parliament voted in favor of certain amendments to its existing copyright regime—amendments that sent waves across the world. On the most extreme side, some commentators are predicting the directive will bring about the end of the Internet, while others take the more modest view that the bill will have positive ramifications for some (such as film directors and screenwriters), and negative ramifications for others (including small and medium-sized digital platforms). Either way, this directive has sparked a massive amount of debate and controversy, and whether or not it results in the death of the Internet, it will undoubtedly change the landscape of digital media in Europe.

The European Union Directive on Copyright in the Digital Single Market, otherwise known as the Copyright Directive, is intended to modernize online copyright law in the EU.[1] With the digital landscape becoming increasingly prevalent in the realm of copyright, seldom few are arguing that some sort of update to existing copyright legislation in the EU was not needed. However, the prevailing view is that the bill is likely to cause more negative, than positive, effects.

In particular, Articles 11 and 13 of the Copyright Directive have received the most attention and criticism. The amendment to Article 11 provides publishers with a means to “obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers,” though hyperlinks are excepted from this amendment. The amended Article 13 mandates that digital content service providers enter into license agreements with copyright holders, and if the right holders do not want to license their content, the parties must “cooperate in good faith in order to ensure that unauthorized protected works or other subject matter are not available on their services.” In furtherance of this cooperation, online service providers must put in place sufficient remedial measures for those whose content is unjustifiably removed by the service providers.[2]

One proposition for which there is little doubt is that the new directive will shift the burden of protecting copyrighted content from the copyright owners themselves to digital platforms such as Google and Facebook[3]. Under this new regime, it will be up to the digital platforms to ensure that their users are not unlawfully sharing copyrighted content.[4] Initially, this effect seems sensible, since the owners of copyrighted content are likely often unaware that their work has been impermissibly shared online. However, this article has received intense backlash from the public. The primary argument against this provision is that it will create untenable costs for small platforms, who do not have the resources or capabilities to screen all content shared on their sites.[5] Additionally, experts contend that this sort of extensive screening of content can only be accomplished by automated filtering systems, which are flawed in-and-of themselves.[6]

One source of intense opposition to the directive is the Electronic Frontier Foundation (EFF), which identifies as “the leading nonprofit organization defending civil liberties in the digital world.”[7] The group advocates for free expression and innovation and is composed of over 37,000 members globally and approximately 3,000 members in the EU. In an effort to prevent the passage of the Copyright Directive in January, the EFF sent a memorandum discussing the reasons for its opposition to each member of the EU bodies negotiating the final draft of the directive.[8] With respect to Article 11, the EFF argues that portions of the article contain significant ambiguities which can lead to adverse effects.[9] For example, the EFF contends that Article 11 does not make clear “when the use of a quotation (such as in a news report) amounts to a use that must be licensed,” by the platform,[10] while some commentators have suggested that quoting more than one word  brings the platform under the purview of Article 11 and requires a license.[11] The EFF’s primary criticism concerning Article 13 is the high potential of abuse and false claims of copyright which the EFF believes will lead to over-censorship of content on the web.[12] Additionally, the creator of the World Wide Web, Tim Berners-Lee predicted that Article 13 “would transform the internet from an open platform for innovation to a tool for automated surveillance.”[13]

This proposed directive is likely to cause even more confusion as a law within the EU as opposed to a law passed by the legislature of a single country. This is because, if the directive is passed, it will be up to each member state to implement the directive into its legal system, and the way in which the directive is implemented, and thereafter interpreted, by the various members will not necessarily be the same.[14] Given the broad, vague language of the articles in controversy and the ambiguities they thereby create, those platforms affected by the regulations will likely face considerable difficulty in determining how to adhere to the rules.[15] Additionally, digital platforms frequently traverse state lines and operate across any number of countries, and  in the United States, digital platforms like Youtube are accorded safe harbor from copyright infringement in certain cases. Therefore, the practical realities of this directive are further complicated.[16]

When the Copyright Directive was initially approved in September, the prevailing thought was that when up for a final decision in January, the EU members would vote to adopt the directive. However, that result is no longer foregone. For the directive to be rejected or reworked, there must be a sufficient number of EU states opposing the directive to constitute a “blocking minority.” That number is 35% of the EU members[17]. Due to a change in government since the vote in September, Italy no longer supports the passage of the directive, and combined with Germany, Finland, the Netherlands, Slovenia, Belgium, and Hungary, the opposition now constitutes more than 35% of the EU states.[18] However, the opposing members are not in consensus on their reasons for opposition and proposed solutions, so as of now, which way the vote will go in January remains up in the air[19].

In sum, whether the amendments, if passed, will amount to the death of the Internet, is unknown. However, the amendments will undoubtedly change the media landscape within the EU. Article 11 (the “link tax”) and Article 13 (the “meme ban”) contain broad and ambiguous language that will make it more difficult for online service providers to ensure compliance with the applicable copyright laws. Further, memes, an exponentially-growing phenomenon amongst the younger generations, will arguably run afoul of these new amendments. While memes are currently a benign, every-day mode of communication between many teens and young adults, Article 13 has been construed by many to prohibit the sharing of memes online, and soon, online service providers may be required to start filtering and removing memes from their sites.[20] Due to these potentially wide-ranging consequences, the EU bodies responsible for negotiating the final draft of the amendments before they become official law should make sure the language is clear and will best effectuate the goals best suited to the countries within the EU in this digital age.

[1]Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2018-0337+0+DOC+PDF+V0//EN

[3] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

[4]James Vincent, EU Approves Controversial Copyright Directive, Including Internet ‘Link Tax’ and ‘Upload Filter’, The Verge (Sept. 12, 2018), https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved.

[5] Id.

[6] Editorial Board, The E.U. Copyright Directive won’t Kill the Internet—but it could still cause Lasting Harm, The Washington Post (Sept. 30, 2018), https://www.washingtonpost.com/opinions/the-eu-copyright-directive-wont-kill-the-internet–but-it-could-still-cause-lasting-harm/2018/09/30/afa69f0e-bac0-11e8-a8aa-860695e7f3fc_story.html?noredirect=on&utm_term=.b9cee8035c60.

[7] Cory Doctorow, EFF’s Letter to the EU’s Copyright Directive Negotiators, EFF (Oct. 23, 2018), https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators.

[8] Id.

[9] Id.

[10] EFF Warns of ‘Ill-Considered’ Copyright Provisions, WIPR (Oct. 24, 2018), https://www.worldipreview.com/news/eff-warns-of-ill-considered-copyright-provisions-16872.

[11] Cory Doctorow, EFF’s Letter to the EU’s Copyright Directive Negotiators, EFF (Oct. 23, 2018), https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators.

[12] Id.

[13] EFF Warns of ‘Ill-Considered’ Copyright Provisions, WIPR (Oct. 24, 2018), https://www.worldipreview.com/news/eff-warns-of-ill-considered-copyright-provisions-16872.

[14] Julia Alexander, ‘Internet is under Threat’” What you Need to Know about the EU’s Copyright Directive, Polygon (Sept. 11, 2018), https://www.polygon.com/2018/9/11/17843664/copyright-directive-europian-union-parliament-explained-internet-article-13-youtube-fair-use.

[15] Id.

[16] Id.

[17] Cory Doctorow, Italy may Kill the EU’s Copyright Filter Plans, Boing Boing (Oct. 23, 2018), https://boingboing.net/2018/10/23/trilogues-on-the-rocks.html.

[18] Id.

[19] Id.

[20] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

South Ossetia: Separatist Client or Sovereign State?

South Ossetia: Separatist Client or Sovereign State?

By Erich Greiner

             This past August marked a stark anniversary in global affairs. For ten years Russian Federation forces have occupied territory within the state of Georgia, after brief but intense combat operations between the Georgian military and separatist fighters of the “breakaway provinces” of South Ossetia and Abkhazia.[1] According to the European Union, the five-day conflict resulted in the deaths of 170 Georgian military personnel, 14 Georgian law enforcement officers, and 228 Georgian civilians.[2] Nearly 289,000 Georgians are estimated as remaining “internally displaced persons,” due to the Georgia-South Ossetian conflicts of the 1990s and 2008, according to the Central Intelligence Agency’s World Fact Book.[3] Russian forces, by comparison, sustained 283 casualties (wounded or killed) and South Ossetian militants and civilians sustained 365 casualties.[4]

The Russian Federation is still attempting to tell its version of the story of the 2008 conflict and its subsequent actions following the fighting. Pro-Russian outlets describe their involvement and continued occupation as little more than a peace-keeping effort, as tensions between the South Ossetian separatists and the Georgian government reached their boiling point that August.[5] They adopt the language of sovereignty and self-determination on behalf of the South Ossetians and Abkhazia. In fact, in an interview done by Sputnik International News on the eve of the ten-year anniversary of the Russian occupation, the former foreign minister and prime minister of Abkhazia, Sergei Shamba, stated that Georgian forces had been surrounding the capital of South Ossetia, before initiating the fighting by firing upon it with artillery.[6] He also claims that international negotiators had already sided with Georgia and were unresponsive to Georgian aggression.[7] Shamba goes on to describe the Russian government as previously having provided humanitarian aide to Abkhazia by rebuilding the railroads of the region, so that they could better mobilize troops to defend against Georgian incursions[8] into the regions recognized as independent states by Russia, Nicaragua, Venezuela, Nauru[9], and Syria[10].

However, an examination of the history of Russian-Georgian relations indicates motivations well beyond simple humanitarian support. In fact, Russian interest in the region dates to 1918, when Georgia gained its independence from the Russian Empire.[11] Only three short years later, the Red Army invaded Georgia and established dominion over the country, establishing Georgia and Abkhazia as Soviet Socialist republics.[12] South Ossetia was created by the Soviet regime only one year later, in 1922.[13] This continued until the end of the Cold War, and in 1990, South Ossetia declared independence from Georgia.[14]

Shortly thereafter, Georgia reestablished independence in April 1991.[15] Then, from 1993-1994, Abkhazian separatist forces engaged in armed conflict with the Georgian Army until a ceasefire was negotiated and Russian forces occupied the region.[16] Since that time, the continued Russian occupation has been a source of tension, including President Putin’s threatened military action, accusing Georgia of aiding Chechen insurgents; Russia’s refusal to have peacekeepers comply with Georgian visa requirements; firing upon an unmanned Georgian drone; and finally, when hundreds more troops were deployed in 2008, leading to the South-Ossetian conflict.[17]

Finally, though both factions have adopted a ceasefire mediated on behalf of the European Union by then-French President Nicolas Sarkozy, Russian Federation troops have blithely ignored its stated principles. Especially at issue is the fifth principle of, “withdraw[ing] to the positions held before hostilities began. . .” and restricting  “additional security measures” to the borders of South Ossetia.[18] In fact, Russian troops have pushed ever further into the heart of Georgia, expanding well past the disputed territory of South Ossetia to occupy almost twenty percent of land recognized as Georgian territory.[19] This practice of “borderization” through the establishment of illegal military checkpoints has limited Georgians’ freedom of movement.[20] There are now 19 Russian outposts in Georgia.[21]

Georgian territory is uniquely strategically valuable to the Russian Federation as well. Turkey is to its immediate west, Iran is to its South, and both the Caspian Sea[22] and Georgia’s Baku-Supsa Pipeline[23] enable the sale of oil. Georgia is also a potential new member state of NATO, and has been major ally to the United States’ war effort in Afghanistan.[24]

Though Russia’s other encroachments, such as those into Crimea[25], and in potential election interference[26] combined with clear violations of the terms of the cease-fire with Georgia cast a long shadow over the South Ossetian secessionist movement, the international community has still had to wrestle with the concepts of statehood, self-determination, and their relationship to recognition.[27]  When the traditional elements of statehood are considered: territory, recognition by other states, and population, the analysis of the status of South Ossetia is indeed complicated and troublesome.[28]

The international community at large has not recognized South Ossetia as its own sovereign state. The recognition of the current territorial boundaries of Georgia and acceptance of Georgia as a member state of the United Nation has de facto rendered South Ossetia’s declaration of independence void.[29] Additionally, as of April 15, 2008, the UN Security Council has also resolved to honor Georgia’s territorial claims—to the exclusion of all others.[30] However, enough land may be controlled by South Ossetia within its disputed borders to satisfy the territorial requirement of a state. [31]  Moreover, it is to be noted that South Ossetia has also been recognized in limited capacity through its entrance into contract and recognition by five other states, and as party to the cease-fire agreement that ended the skirmishes in the 2008 conflict.[32] Still, this has not brought full recognition of South Ossetian sovereignty by the international community, though the people of South Ossetia retain the right to self-determination.[33] Furthermore, though the right of secession of peoples of a recognized-state has historical precedence, it has generally been understood in practice as limited to cases of colonialism or in cases of extreme humanitarian crisis, such as genocide or ethnic cleansing. [34]

This reasoning is also why the Russian and South Ossetian argument in the guise of self-determinism analogous to the United States’ intervention in Kosovo has failed.[35] There, is no concern such as the Albanian ethnic cleansing of ethnic-Serbs in Kosovo that would mandate emergency humanitarian intervention or trigger a right of secession for the South Ossetian people.[36] Furthermore, whereas the recognition of Kosovo was hindered by Russia’s singular veto on the Security Counsel; whereas Kosovo had been classified a United Nations protectorate; whereas Kosovo had recognition from multiple international bodies including the United Nations, the European Union, NATO, the Western Members of the Kosovo Contact Group, and the Organization for Security and Co-operation in Europe, along with 46 United Nations member countries on an independent basis, South Ossetia has no similar claim.[37] As of now, South Ossetia, and its sister Abkhazia will likely remain “entit[ies] short of statehood”.[38]

 

[1] 2008 Georgia Russia Conflict Fast Facts, CNN (Apr. 3, 2018), https://www.cnn.com/2014/03/13/world/europe/2008-georgia-russia-conflict/index.html.

[2] Id.

[3] Middle East: Georgia, The World Factbook, Central Intelligence Agency (Oct. 17, 2018), https://www.cia.gov/library/publications/the-world-factbook/geos/gg.html

[4] 2008 Georgia Russia Conflict Fast Facts, CNN (Apr. 3, 2018), https://www.cnn.com/2014/03/13/world/europe/2008-georgia-russia-conflict/index.html.

[5] How Russia Recognized the Independence of Abkhazia and South Ossetia, Sputnik News (Sept. 8, 2018,     9:38), https://sputniknews.com/interviews/201808081067034864-how-russia-recognized-abkhazia-south-ossetia-independence/.

[6] Id.

[7] Id.

[8] Id.

[9] Countries that recognized South Ossetia’s and Abkhazia’s Independence, TASS (May 29, 2018, 4:59 PM), http://tass.com/world/1007058.

[10] Georgia Severs Relations With Syria For Recognizing Abkhazia, South Ossetia, Radio Free Europe Radio Liberty (May 29, 2018, 5:30 GMT), https://www.rferl.org/a/georgia-syria-establishes-diplomatic-relations-with-abkhazia-south-ossetia/29257063.html.

[11] 2008 Georgia Russia Conflict Fast Facts, CNN (Apr. 3, 2018), https://www.cnn.com/2014/03/13/world/europe/2008-georgia-russia-conflict/index.html.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Background: Six-point peace plan for the Georgia-Russia Conflict, Reliefweb (Aug. 15, 2008), https://reliefweb.int/report/georgia/background-six-point-peace-plan-georgia-russia-conflict.

[19] John Haltiwanger, Russia is quietly seizing territory in Georgia as it warns of a ‘horrible conflict’ if the Eurasian country joins NATO, Business Insider (August 7, 2018 5:11 PM), https://www.businessinsider.com/russia-quietly-seizing-territory-in-georgia-10-years-after-the-war-2018-8.

[20] Id.

[21] Id.

[22] Id.

[23] Andrew North, Georgia accuses Russia of violating international law over South Ossetia, The Guardian (Jul 14, 2015, 7:29 EDT).

[24] John Haltiwanger, Russia is quietly seizing territory in Georgia as it warns of a ‘horrible conflict’ if the Eurasian country joins NATO, Business Insider (August 7, 2018 5:11 PM), https://www.businessinsider.com/russia-quietly-seizing-territory-in-georgia-10-years-after-the-war-2018-8.

[25] John Simpson, Russia’s Crimea plan detailed, secret and successful, BBC News (Mar. 19, 2014), https://www.bbc.com/news/world-europe-26644082.

[26] New York Times: Russian hacking and Influence in the US Election, https://www.nytimes.com/news-event/russian-election-hacking; Rick Noack, Everything we know so far about Russian election meddling in Europe, Wash. Post (Jan. 10, 2018), https://www.washingtonpost.com/news/worldviews/wp/2018/01/10/everything-we-know-so-far-about-russian-election-meddling-in-europe/?utm_term=.d51eb453936d.

[27] South Ossetia, Oxford Public International Law (January 2013), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2068,

[28] Statehood (international law), Wex, Cornell Law School: Legal Information Institute, https://www.law.cornell.edu/wex/statehood_%28international_law%29

[29]  See Supra. note 27 ¶¶ 18

[30] Id..

[31] Id., at ¶¶ 20.

[32] Id., at ¶¶ 35.

[33] Id., at ¶¶ 25.

[34] Id., at ¶¶ 32.

[35] Sally McNamara, Russia’s Recognition of Independence for South Ossetia and Abkhazia Is Illegitimate: They Are Not Kosovo, The Heritage Foundation: Report Europe (Aug. 28, 2008), https://www.heritage.org/europe/report/russias-recognition-independence-south-ossetia-and-abkhaziais-illegitimate-they-are

[36] Ethnic Cleansing and Atrocities in Kosovo, PBS: War in Europe, https://www.pbs.org/wgbh/pages/frontline/shows/kosovo/cleansing/.

[37] See Supra. Note 35

[38] South Ossetia, Oxford Public International Law (January 2013), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2068, at ¶¶ 18

A Look at Prison Labor as a Tool of Control

A Look at Prison Labor as a Tool of Control

What might incentivize a government to adopt the use of Prison Labor? A State benefits from the use of Prison labor as (1) a tool of control (i.e. a method of re-education for society), and (2) market incentives from the global demand for Non Citizen bodies. Prison labor has been used by a variety of governments, for the above reasons. Here, we can look at some similarities in the use of prison labor in the United States and the People’s Republic of China[i].

Prison Labor[ii] is used here as a generic term to encompass the various forms of forced labor by people who are incarcerated or detained by a state.[iii] Here, we take a look at its use in the United States of America and the People’s Republic of China. Between “Prison Labor” and “Forced Labor,” China distinguishes between Criminal Sentencing and Administrative detention. An individual is incarcerated (Prison Labor) if they are held due to a criminal sentence. Under administrative detention, the individual is only detained in the labor system (forced labor), but not technically a prisoner. This distinction comes into play when granting protections under the state’s employment laws. Likewise, in the US, there is the same distinction between prison labor by incarcerated workers, and detained migrants exploited into situations of “forced labor.” Again, the distinction matters when seeking protection and rights under employment law.

The US and China share the additional use of criminal punishment as a tool to signal control in society. As a method of re-education, the use of prison labor in China has been as forthright as “re-education through the labor system.”[iv] Comparatively, although less direct, the pursuit of societal control through prison labor is also found in the US. Drawing the same parallels where the “re-education” aspect of prison labor is less for the individual’s rehabilitation, and more so to educate society. Both systems distinguish the criminal as a deviant from society and being outside of society, the criminal is outside the state’s protection—while in the state’s care. Lastly, when it comes to market incentives, prison labor is a billion-dollar industry. There is a global market where “Non Citizen Bodies” may refer to, but is not limited to, documented and undocumented migrant labor. They are vulnerable to labor exploitation because they are deprived of the protection of the state (under employment law) while under the state’s care (incarcerated or detained).

(Re)Educating Society with Prison Labor

Theoretically, society justifies punishment by alluding to its purpose in: deterrence, retribution, rehabilitation, restitution, and incapacitation. A leading sociologist of crime and punishment[v], David Garland describes an additional purpose, criminal punishment, as an authoritarian tool to signal control—“that crime is an aberration” and this segregates the criminal from the rest of society.[vi] Distinguishing the criminal as a deviant from society is an educational tool of the State. This additional use of criminal punishment establishes “a kind of sentimental education, generating and regenerating a particular mentality and particular sensibility” in society.[vii] The educational purpose is distinguished from “deterrence” because it is not just the punishment that is the tool, it is the criminal justice system and its ritual in trial, sentencing, and execution of punishment as a “formalized embodiment and enactment of the conscience collective,” that is, what we believe to be what our representative governance calls for.[viii] The “international leasing” of inmates and prison space in the Belgian-Dutch Prisoner Exchange was a result of normalizing the prison labor industry— an intended product of the State’s sentimental education.

The utilization of criminal punishment as a tool of societal education shares parallels with another giant in the forced labor industry, the People’s Republic of China. In 2017, the US-China Economic and Security Review Commission identified three key challenges to US Exposure to Forced Labor Exports from China. The Commission identified: “difficulty of meeting verification requirements for prison labor products and inadequate cooperation offered by Chinese authorities, the status of the re-education through labor system, and exploitative virtual labor.”[ix] Of the three, we will focus on the status of “re-education through labor system.”[x]

As the global stage is being prepared to normalize forced labor for the incarcerated, the segregation of society from the state-determined deviants broadens. Historical trends indicate that marginalized communities are particularly at risk, classified as “deviants,” and thus somehow are deserving of their punishment. Vulnerable groups include, but are not limited to, the LGBTQ community, non-majority ethnic groups, and sex workers. One of the demands of the National Prisoners Strike, a 19-day strike in response to the 2018 riot in Lee Correctional Institution[xi], was a call for recognition of the disproportionate incarceration of people of color.[xii] The strike also called attention to the disparity between compulsory prison labor where laborers earn as little as 4 cents an hour[xiii] for a multi-billion dollar, for-profit prison industry.[xiv]The US is estimated to have nearly 2.3 million people serving time.[xv]Recently, a United Nations Panel estimated nearly a million Uighurs, an ethnic minority in China, are being detained in reeducation programs in Xinjiang, China.[xvi]

China’s Re-Education through Labor System (RTL) was officially abolished in 2013 and replaced by the Custody and Education Centers (C&E). Asia Catalyst, a nonprofit based in New York, reported the new C&E system as “almost identical” to the abolished RTL. They share similar themes of punishment for the sake of “education” and clients are detained for long periods of time without any form of judicial oversight with forced labor. [xvii] Similar to debates over the RTL system, Zhu Zhengfu, Vice President of the All-China Lawyers Association and a member of the Chinese People’s Political Consultative Conference, proposes a Constitutional Review of C&Es because he argues that C&Es are legally at odds with Legislation Law and legislative jurisdiction.

Comparatively, in the United States, prison labor is constitutional as “Penal Labor” under the Thirteenth amendment. Where the Thirteenth Amendment forbade slavery and involuntary servitude, it left a convenient exception for “punishment for crime whereof the party shall have been duly convicted.”[xviii] Harking back to the justifications for criminal punishment, labor was seen as an apt punishment. Although Levin may examine the prisoner as “the worker,” the United States courts have distinguished the prisoner from the definition of “employee” under the FLSA. [xix] The court continues to hold in various cases that prison labor, voluntary or not, is not an employment relationship within the meaning of the FLSA. [xx] Stateside, the prison laborer is not entitled to employee protections under the law from safety to wage protection. The US distinguishes the status of the incarcerated worker in prison labor from the status of an “employee” and therefore deprives them of protection by the state granted under employee law, while in the state’s care.

Prison Labor and the Global Market for Non-Citizen Bodies

Benjamin Levin[xxi] examines the Belgian-Dutch prisoner exchange through multiple lens, one of which is “democracy, sovereignty, and the role of community in criminal punishment.” In 2009, Belgium agreed to send Belgian inmates to Dutch prisons in the Netherlands in exchange for a yearly payment. Viewing the prisoner as a worker, Levin questions the role of prison labor and its relationship with transnational labor and also the practice of leasing inmates and prison space. [xxii]Additionally, Levin examines the frame with a question of exceptionality, whether the global market possibility of prisoners be viewed as something conceptually new and distinct or simply a repackaged and just an exploitative version of the domestic incarceral institution. Furthermore, Levin examines the “role of prison labor in the United States and the potential doctrinal relationship between its regulation and the treatment of transnational labor.

Categorizing detention, a formal sentence to forced labor can be imposed by a court in a criminal sentence in the People’s Republic of China. This is separate from Reeducation Through Labor (RTL) which is a form of administrative detention, imposed by officials where no legal due process is required. The government defines RTLs are distinct from prisons and therefore, the labor prescribed is not prison labor. However, the US Commission rejects that definition and defines all forced labor detention facilities in China to be prison labor facilities. [xxiii]

Similar to China’s distinction between Criminal Sentencing and Administrative detention, the United States also insists on distinguishing between the forced labor of citizen inmates and the utilization of deprivation schemes for “voluntary” work by detained noncitizen bodies. A class-action lawsuit (detainees at the Stewart Detention Center) against CoreCivic (a billion-dollar private prison industry) alleges the practice of “deprivation schemes” where detainees are deprived of basic necessities to incentivize labor.[xxiv] Where China distinguishes between criminal sentencing and administrative detention, the United States distinguishes between due process for a Citizen and non-Citizen. Akin to the Belgium-Dutch prisoner exchange, there is a market for noncitizen bodies in the global market. Unlike the cooperative leasing of bodies by both States in the Belgium-Dutch Exchange, the United States unilaterally detains immigrants and operates a system of forced labor. Many of the detained immigrants “accede to deportation simply to escape intolerable conditions of confinement, even when they have valid claims to remain in the United States,” [xxv] such as asylum.

With similar motives in societal education and profit behind their prison labor systems, where do the US and China lie in respect to one another’s use of Prison Labor? The 2008 Memoranda of Understanding Between the US and China Regarding Prison Labor recorded a hearing before the US-China Economic and Security Review Commission.[xxvi] The Commission found that the degree of non-compliance by China and the degree of enforcement by the US resulted in a bilateral unwillingness to pursue the issue of prison labor. [xxvii]Commissioner Wessel found that under the MOU and the SEC, the US was within their rights under the Trade Agreement to detain disputed products. The 1992 Memorandum of Agreement (MOU) was an agreement that prison-made products will not be exported from China to the United States. The 1994 Statement of Cooperation (SOC) follow up and elaborated on the investigation and resolution procedures for these alleged cases. Pursuant to the MOU, if the US has reason to believe a product facility is a prison they may request information about the facility. Pursuant to the SOC, if the Chinese government does not respond within 60 days, the US may detain products. However, the Commissioner found that the US was not detaining products under this reasoning despite having the tools to do so. Although China’s non-compliance (failure to respond in a timely manner[xxviii], deferring to local authorities, etc.) contributed to various open and unresolved cases—the Commissioner found that the cases were being unresolved as a result of the unwillingness by the US to pursue the matter as well. In current day affairs, advocates call on the US “to restrict the financial assets of Chinese government officials”[xxix] involved in the repression of Uighurs in Xinjiang. However, it is indeterminable whether the US will be willing to act.

 

 

[i] Prison labor in China is also known as laogai (reform through labor)

[ii] Also known as “Penal Labour”

[iii] The two are distinct in many ways, but for the purpose of this piece, “prison labor” is used as an umbrella term alongside “forced labor” in the context that both are used as tools of control and they have the same market incentives for the State utilizing them.

[iv] Dotson, John and Vanfleet, Teresa. Prison Labor Exports from China and Implications for US Policy. US-China Economic and Security Review Commission Staff Research Report. 2014. (2) (China distinguishes between Criminal Sentencing and Administrative detention.)

[v] David Garland is the Arthur T. Vanderbilt Professor of Law in the School of Law and also Professor of Sociology in NYU’s Department of Sociology. Considered one of the world’s leading sociologists of crime and punishment, he graduated from the University of Edinburgh with a degree in Law and with a Ph.D in Socio-Legal Studies; he has a Masters in criminology from the University of Sheffield. He has authored numerous award-winning books on crime and punishment and has been awarded doctorates from various Universities due to his contributions to the field.

[vi] Garland, David. Punishment and Modern Society, supra note 11, at 67-68 (emphasis added. Cf. Overton v Bazzetta, 539 U.S. 126, 143 (2003) (Thomas, J., concurring) (discussing the rise of the prison in the United States as a means of segregating “the ‘deviant’ (i.e., the criminal)” from the rest of society).

[vii] Id.

[viii] Id.

[ix] Bowe, Alexander. US Exposure to Forced Labor Exports from China: Developments since the US Trade Facilitation and Trade Enforcement Act of 2015. US-China Economic and Security Review Commission (2017).

[x] Id.

[xi] Lee Correctional Institution is a maximum security prison in South Carolina, US.

[xii] Press Release: National Prisoners Strike August 21st – September 9th 2018. Web. https://www.dropbox.com/s/r5cr546jlscgkhj/Prison%20Strike.pdf?dl=0

[xiii] Citing a report by The Associated Press on the hourly rate for prison labor in Louisiana for inmate construction work.

[xiv] Barron, Laignee. Here’s Why Inmates in the U.S. Prison System Have Launched a Nationwide Strike. Time Magazine. 22 Aug 2018. Web. http://time.com/5374133/prison-strike-labor-conditions/

[xv] Wagner, Peter and Sawyer, Wendy. Mass Incarceration: The Whole Pie. Prison Policy Initiative. 14 Mar 2018. Web. https://www.prisonpolicy.org/reports/pie2018.html

[xvi] Cumming-Bruce, Nick. U.N. Panel Confronts China Over Reports That It Holds a Million Uighurs in Camps. New York Times. 10 Aug 2018. Web. https://www.nytimes.com/2018/08/10/world/asia/china-xinjiang-un-uighurs.html

[xvii] Asia Catalyst, “‘Custody and Education’: Arbitrary Detention for Female Sex Workers in China,” 7 Dec 2013. Web. http://www.asiacatalyst.org/wp-content/uploads/2014/09/AsiaCatalyst_CustodyEducation2013- 12-EN.pdf

[xviii] U.S. Const. amend. XIII, §1.

[xix] Bennett v. Frank, 395 F.3d 409, 410 (7th Cir. 2005). See also, Tourscher v. McCullough

[xx] See also, Danneskjold v. Hausrath, 82 F.3d 37, 44 (2d Cir. 1996) (“[P]rison labor is not in all circumstances exempt from the FLSA and that an economic reality test is to be used in determining whether payment of FLSA wages is required.

[xxi] Benjamin Levin is an Associate Professor of Law at the University of Colorado Law School. https://lawweb.colorado.edu/files/vitae/levin.pdf

[xxii] Levin, Benjamin. Inmates for Rent, Sovereignty for Sale: The Global Prison Market. Southern California Interdisciplinary Law Journal. 512. University of Southern California (1992)

[xxiii] Dotson, John and Vanfleet, Teresa. Prison Labor Exports from China and Implications for US Policy. US-China Economic and Security Review Commission Staff Research Report. 2014. (2)

[xxiv] Shoichet, Catherine E. Lawsuit alleges ‘forced labor’ in immigrant detention. CNN. 17 April 2018. https://www.cnn.com/2018/04/17/us/immigrant-detention-forced-labor-lawsuit/index.html Citing Barrientos v Core Civic, No. 4:18-CV-00070 (M.D. Ga. April 17, 2018). Web. https://projectsouth.org/wp-content/uploads/2018/04/Complaint-Barrientos-v.-Core-Civic.pdf

[xxv] Barrientos v Core Civic,. at 5.

[xxvi] US-China Economic and Security Review Commission. The Memoranda of Undersatnding Between the US and China Regarding Prison Labor. One Hundred Tenth Congress. 19 June 2008.

[xxvii] Memoranda of Understanding Between the US and China Regarding Prison Labor, at 49.

[xxviii] Some responses took up to a decade.

[xxix] Magnitsky Act provisions apply globally authorizing the government to sanction human rights offenders. This act is a bipartisan bill passed in 2012 intended to punish Russian Officials. This act was the subject of one of the Trump Tower Meetings in 2016 between lobbyist and Russian lawyer Natalia Veselnitskaya and Donald Trump Jr.