Edinburgh Student Law Review 2015 Volume II | Issue 4 2014 Edinburgh Postgraduate Law Conference Edition i BLANK ii Acknowledgement The Edinburgh Postgraduate Law Conference Committee 2014 wishes to thank the University of Edinburgh Law School and the Institute for Academic Development for their financial assistance. iii Blank iv Sponsors v vi Edinburgh Postgraduate Law Conference 2014 Organising Committee Humberto Carrasco Tom Gerald Daly Laura Downey David Komuves Ekrem Solak Leslie Stevens LL.M. Liaison to the Organising Committee Ognjenka Manojlovic LL.M. Assistants Basant Abdel-Ghany Abdel-Meguid Emiel de Buijne Thomas Godener Fabian Michl Neža Šubic Ellen Heyd David Retzmann Ciaran Donohue vii Blank viii Edinburgh Student Law Review 2014-15 Honorary President Lord Hope of Craighead Honorary Secretary Dr Andrew Steven Editor-in-Chief Lorna MacFarlane Content Editors Jiahong Chen Darin Clearwater María Paz Gatica Rodríguez Ilya A. Kotlyar Alexander Latham Alisdair MacPherson Alasdair Peterson Grant Stirling Marko John Supronyuk Griff Williams Amanda Wyper Chief Copy Editors Jann-Michael Greenburg Alisha Malik Terence Merck Finance Officers Publications Officer Joseph Stephen Liptrap Danielle McAlonan Shannon Russell Copy Editors Paul Alcorn, Natalia Bell, Rowena D. Carlton, John Callender, Daria Janus, Caitlin Jenkins, Maria Kelepeshi, Joseph Stephen Liptrap, Paloma Martyniuk, David Murphy, Emily O’Sullivan, Joanne Smith, Wai-Yee Tsang, Annie Valentine ix Blank x Foreword by Professor Richard Sparks It gives me great pleasure to welcome the publication of this special conference edition of the Edinburgh Student Law Review, containing a range of pieces written by speakers at the second Edinburgh Postgraduate Law Conference, held in December 2014. Having had the great pleasure of formally opening the conference, I have had the opportunity to see first-hand how much work went into the two-day event. Postgraduate law conferences, which have proliferated in recent years, offer a useful training ground for budding scholars, allowing them to hone presentation skills and exchange ideas in a supportive environment. The fact that participants at the 2014 conference came from over 30 universities across the UK and Europe demonstrates the value of providing fora for engagement and discussion between peers, making postgraduate students active agents in their own development as scholars. The breadth of articles in this collection attests to the quality of research showcased at the 2014 conference, and the extent to which contributors engaged with the conference theme of ‘Innovation in the Law’. A number of distinct trends can be observed. Human rights protection is a particular focus, including the rights implications of the so-called ‘war on terror’, the elderly as rights-holders and the new and controversial ‘right to be forgotten’ online. The law’s relation to, and regulation of, the internet, comes to the fore in articles on artificial intelligence and the internet, and the relationship between online activism and democratisation in China. A further grouping of pieces explores the capacity of law to regulate cultural and financial affairs, concerning the commodification of cultural products as well as the ongoing fall-out of the economic downturn for regulation of corporations and financial products. The final two articles, on the attempted invalidation of federal law by US states and the right to secession in international law, speak to two fundamental issues which gain currency in the contemporary Scottish context: the frictions generated in federal constitutional structures and the limits of law in governing what are essentially political questions. From its inception the Review has been produced for, and by, students. A thriving postgraduate research community is a central part of what makes our School the exciting and outward-looking place that it is today. The Editorial Board of the Review and the Conference xi Organising Committee 2014 are to be congratulated on this collaboration, which may serve as a model for future postgraduate conferences, both here in Edinburgh and elsewhere. Professor Richard Sparks Head, Edinburgh Law School June 2015 xii Note from the Conference Organising Committee 2014 This special edition of The Edinburgh Student Law Review is devoted to a selection of research papers presented by postgraduate scholars (LL.M and Ph.D researchers) at the second annual Edinburgh Postgraduate Law Conference, which took place at Edinburgh Law School on 1-2 December 2014 on the theme ‘Innovation in the Law: New Challenges, New Perspectives’, funded by Edinburgh University’s Institute of Academic Development (IAD) and the Law School. The 2014 conference featured thirty-six postgraduate speakers, selected from a pool of almost two hundred abstracts, grouped into twelve panels covering a range of subjects, including: the commodification of culture in the area of intellectual property; the legal framework governing ‘killer robots’; the democratisation of authoritarian regimes; and the so-called ‘right to be forgotten’ online. The selection here comprises thirteen of the original thirty-six presentations, re- worked as articles, having originally been posted as 1000-word blog posts on the conference blog at www.lawphd conference.ed.ac.uk/speakers-blog/. The quality of the articles here attests to the significant value of holding events to bring postgraduate legal scholars together. Speakers and participants at the 2014 conference hailed from 19 different UK universities, as well as 13 different non-UK universities, and the event provided a space for young scholars to obtain feedback on their research, connect with other researchers in their area, and leave behind the general solitude of postgraduate (especially Ph.D) life for two days. The success of the two Edinburgh Postgraduate Law conferences to date underscores the vibrancy of the postgraduate research community at Edinburgh, not least its variety of student-run discussion groups and the Review itself, which is also entirely student-run. This edition, a testament to the hard work of those at the Edinburgh Student Law Review and the fruits of 2014 Conference, are further evidence of this vitality. We are greatly indebted to the conference speakers for contributing their pieces, and to the Editorial Board of the Review for bringing it to completion. Edinburgh Postgraduate Law Conference Organising Committee 2014 Humberto Carrasco, Tom Gerald Daly, Laura Downey, David Komuves, Ekrem Solak and Leslie Stevens June 2015 xiii Blank xiv Editorial For the last two years, the Edinburgh Postgraduate Law Conference has provided a highlight of the winter academic (and social) calendar at the University of Edinburgh Law School. When we were approached by the 2014 Committee with an offer to collaborate on a special edition consisting of research papers from the 2014 Conference, we did not hesitate to accept. Many of our Board members had greatly enjoyed the Conference, and as a publication produced and written entirely by students, we welcome any opportunity to exhibit the work of our peers. This issue has allowed the Edinburgh Student Law Review to work with postgraduate students from thirteen different universities, and we have been greatly impressed by the diversity and quality of the articles submitted for this special issue. We would like to thank some particular people for their contributions to this issue. The work of our Copy Editors has ensured that this publication is of an exceptionally high quality in the field of student journals. Mr Neil Davidson’s assistance with the Review’s website, the primary means of dissemination for this issue, is much appreciated. We are grateful for the support and encouragement of our Honorary President, Lord Hope of Craighead, and our Honorary Secretary, Dr Andrew Steven. Our sponsors, Turcan Connell LLP, Thomson Reuters, DLA Piper LLP, and the University of Edinburgh Law Students’ Council, have offered invaluable encouragement and financial support. Finally, we thank the Conference Committee 2014 for suggesting that we work together to produce this issue, and echo their thanks to the Law School and the Institute for Academic Development, without whose support the Conference and this resulting issue would not have been possible. It is our hope that future Boards and Conference Committees will produce further special editions showcasing the excellent standard of research presented at the Law School through the Postgraduate Law Conferences. The Edinburgh Student Law Review Board 2014-15 May 2015 xv Blank xvi Contents Ben Stanford The ‘War on Terror’: Perpetual Emergency 1 Rosalind Butler Capabilities: A New Approach to Human Rights for the 17 Elderly Magdalena Jozwiak Slipping down the Slopes: The Vices and Virtues of 32 Forgetting Online Qi Chen Penal Populism Online and the Democratisation of 48 Authoritarian Regimes: The Case of China Jesus Manuel Artificial Legal Intelligence on the Internet: The Next 64 Niebla Zatarain Approach to Enforcing the Law Online Megan Rae Blakely The Value Problem in Law and 76 Intangible Cultural Heritage Andrea Zappalaglio The Protection of Geographical Indications: Ambitions 89 and Concrete Limitations Navajyoti Samanta Utilising Item Response Theory in Computing 103 Corporate Governance Indices Jan de Bruyne and Rating the EU Regulatory Framework on the Liability 117 Cedric Vanleenhove of Credit Rating Agencies – “Triple A or Junk”? Michael Wolfgang Does Legal Innovation Cope with Financial 129 Müller