29. See P. R. Ghandhi, The Human Rights Committee and the Right of Individual. Communication: Law and Practice
(Dartmouth: Ashgate, 1998).
30. As reflected on the Web site of the High Commissioner for Human Rights (updated December 6, 2006), http://
www.ohchr.org/english/countries/ratification/5.htm.
31. See ‘‘Jamaica Withdraws the Right of Individual Petition under the International Covenant on Civil and Political
Rights’’ 92 Am. J. Int’l L. 563 (1998); Trinidad and Tobago subsequently re-acceded with a reservation limiting the
UNHRC’s power to determine complaints regarding death-row inmates, the subject matter of most communications it faced—see http://www.ohchr.org/english/countries/ratification/5.htm.
32. See P. R. Ghandhi, The Human Rights Committee and the Right of Individual. Communication: Law and Practice
(Dartmouth: Ashgate, 1998).
33. For a more thorough description of these issues, see Tim Wu, ‘‘The World Trade Law of Internet Filtering’’ (May 3,
2006), available at SSRN: http://ssrn.com/abstract=882459. For an additional perspective on how countries have
inadvertently opened the floodgates of trade, see Mary C. Rundle, ‘‘Beyond Internet Governance: The Emerging
International Framework for Governing the Networked World’’, Berkman Center Research Publication No. 2005-16
(December 13, 2005), available at SSRN: http://ssrn.com/abstract=870059.
34. WTO, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Appellate
Body Report (WT/DS285/AB/R) of 7 April 2005.
35. With respect to this particular issue, the Appellate Body held that the measures imposed by the United States fell
within the scope of GATS Article XIV.
36. Ibid., para. 304.
37. Ibid., para. 306.
38. This approach loosely embraces the principle of subsidiarity (i.e., governance at the most local level practicable) as
the panel checks that the member applying an exception has itself used a process to determine that the interests
or values that the measure is protecting are important.
39. This test bears some resemblance to that of necessity under the ICCPR.
40. GATS categorizes the different means by which services are supplied according to different modes. Because GATS
binds WTO members only where they have specifically agreed to grant market access, and because they may
specify these commitments according to the different modes of supply, a panel would need first to determine if
the member against whom a claim was brought had even agreed to guarantee market access for that type of service in that particular mode. Of course, for the panel to be applying analysis under GATS, the claimant would need
to have cast the activity as a ‘‘service.’’
41. If a case were brought, a panel might defer to ICCPR provisions regarding permissible limitations, but when it
would then turn to analyze whether the filtering were done in the least trade-restrictive manner, most likely the answer would be no. In that case, the remedy would be to tell the host government to change its measures or suffer
economic sanctions roughly equivalent to the damage the home country had faced.
42. See, e.g., Frieder Roessler, ‘‘The Constitutional Function of the Multilateral Trade Order,’’ in Frieder Roessler, ed.,
The Legal Structure, Functions and Limits of the World Trade Order: A Collection of Essays (London: Cameron
May, 2000), 109.
43. Wu asserts that the WTO already constitutes a sweeping regulatory regime, despite the more limited intentions
of the signatories to its agreements. Rundle sets out a similar argument that countries have established a
loose framework for international Net governance through numerous initiatives in intergovernmental organizations—with this Net regulation then driving integration further and ultimately leading to international federalism.
(See note 33.)
44. Ibid.
45. This ‘‘failure’’ of international law stands in contrast to relatively strong regional systems, such as the European
Convention on Human Rights, which affords enforceability and, in practice, is binding against the state.
46. Of course, it should be remembered that the state may also be mediating between competing liberties that people
have. By way of example, a state may be reconciling freedom of expression and freedom from the discrimination
that is brought on by hate speech. This mediating role is particularly important in societies that think in terms of
group rights as well as individual rights.
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Mary Rundle and Malcolm Birdling
(Dartmouth: Ashgate, 1998).
30. As reflected on the Web site of the High Commissioner for Human Rights (updated December 6, 2006), http://
www.ohchr.org/english/countries/ratification/5.htm.
31. See ‘‘Jamaica Withdraws the Right of Individual Petition under the International Covenant on Civil and Political
Rights’’ 92 Am. J. Int’l L. 563 (1998); Trinidad and Tobago subsequently re-acceded with a reservation limiting the
UNHRC’s power to determine complaints regarding death-row inmates, the subject matter of most communications it faced—see http://www.ohchr.org/english/countries/ratification/5.htm.
32. See P. R. Ghandhi, The Human Rights Committee and the Right of Individual. Communication: Law and Practice
(Dartmouth: Ashgate, 1998).
33. For a more thorough description of these issues, see Tim Wu, ‘‘The World Trade Law of Internet Filtering’’ (May 3,
2006), available at SSRN: http://ssrn.com/abstract=882459. For an additional perspective on how countries have
inadvertently opened the floodgates of trade, see Mary C. Rundle, ‘‘Beyond Internet Governance: The Emerging
International Framework for Governing the Networked World’’, Berkman Center Research Publication No. 2005-16
(December 13, 2005), available at SSRN: http://ssrn.com/abstract=870059.
34. WTO, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Appellate
Body Report (WT/DS285/AB/R) of 7 April 2005.
35. With respect to this particular issue, the Appellate Body held that the measures imposed by the United States fell
within the scope of GATS Article XIV.
36. Ibid., para. 304.
37. Ibid., para. 306.
38. This approach loosely embraces the principle of subsidiarity (i.e., governance at the most local level practicable) as
the panel checks that the member applying an exception has itself used a process to determine that the interests
or values that the measure is protecting are important.
39. This test bears some resemblance to that of necessity under the ICCPR.
40. GATS categorizes the different means by which services are supplied according to different modes. Because GATS
binds WTO members only where they have specifically agreed to grant market access, and because they may
specify these commitments according to the different modes of supply, a panel would need first to determine if
the member against whom a claim was brought had even agreed to guarantee market access for that type of service in that particular mode. Of course, for the panel to be applying analysis under GATS, the claimant would need
to have cast the activity as a ‘‘service.’’
41. If a case were brought, a panel might defer to ICCPR provisions regarding permissible limitations, but when it
would then turn to analyze whether the filtering were done in the least trade-restrictive manner, most likely the answer would be no. In that case, the remedy would be to tell the host government to change its measures or suffer
economic sanctions roughly equivalent to the damage the home country had faced.
42. See, e.g., Frieder Roessler, ‘‘The Constitutional Function of the Multilateral Trade Order,’’ in Frieder Roessler, ed.,
The Legal Structure, Functions and Limits of the World Trade Order: A Collection of Essays (London: Cameron
May, 2000), 109.
43. Wu asserts that the WTO already constitutes a sweeping regulatory regime, despite the more limited intentions
of the signatories to its agreements. Rundle sets out a similar argument that countries have established a
loose framework for international Net governance through numerous initiatives in intergovernmental organizations—with this Net regulation then driving integration further and ultimately leading to international federalism.
(See note 33.)
44. Ibid.
45. This ‘‘failure’’ of international law stands in contrast to relatively strong regional systems, such as the European
Convention on Human Rights, which affords enforceability and, in practice, is binding against the state.
46. Of course, it should be remembered that the state may also be mediating between competing liberties that people
have. By way of example, a state may be reconciling freedom of expression and freedom from the discrimination
that is brought on by hate speech. This mediating role is particularly important in societies that think in terms of
group rights as well as individual rights.
100
Mary Rundle and Malcolm Birdling