Archive for
2009

Special Double Issue on the ICC

by Kevin Jon Heller

Last year, as I was reading an early draft of the agenda for the ICC’s Review Conference in 2010, I asked myself what I would change about the Rome Statute if I was King of the Assembly of States Parties.  My answer was that I would amend Article 17, the complementarity provision, to make a case admissible if a national proceeding did not provide the defendant with due process — an issue I had written about before.  (You can find the essay here, if you’re interested.)

I then wondered what other ICL scholars would change if they were given the opportunity.  So I asked 14 of them.  Their answers, in the form of short essays between 3,000 and 6,000 words, have now been published in a special double-issue of New Criminal Law Review, a journal of which I am an Associate Editor.  Here is the combined table of contents of Volume 12, Issue 3 and Issue 4:

Kevin Jon Heller, Introduction

Neil Boister, Treaty Crimes, International Criminal Court?

Roger S. Clark, Building on Article 8(2)(b)(xx) of the Rome Statute: Weapons and Methods of Warfare

Robert Cryer, Royalism and the King: Article 21 and the Politics of Sources

Jens David Ohlin, Joint Criminal Confusion

Elies van Sliedregt, Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense

Mohamed Elewa Badar, Dolus Eventualis and the Rome Statute Without It?

Olympia Bekou, A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision

Ilias Bantekas, The Need to Amend Article 12 of the ICC Statute: Remedying the Effects of Multilateral Treaties upon Third Parties

Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?

Hector Olasolo, Systematic and Casuistic Approaches to the Role of Victims in Criminal Proceedings Before the International Criminal Court

Michael Bohlander, Pride and Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts

Kai Ambos, Confidential Investigations vs. Disclosure Obligations: The Lubanga Case and National Law

Alexander Zahar, International Court and Private Citizen

Goran Sluiter, “I Beg You, Please Come Testify” — The Problematic Absence of Subpoena Powers at the ICC

At the risk of sounding immodest, I think the collection is a must-read for anyone interested in the ICC. My thanks to the contributors for their fantastic essays!

Counter-terrorism and the Limits of Cost-Benefit Analysis

by Kenneth Anderson

A couple of years ago I wrote a paper on ways in which the American political class is riven by deep foundational disagreements about the proper way to approach transnational terrorism.  It is partly implicated in the “war” versus “law enforcement” argument, but actually it goes deeper than that — is it possible to have an offensive strategy against terrorism, or is the only long term possibility defensive perimeters represented by such things as airport screenings and the like?  That, and an even more pessimistic possibility that simply says, following the John Mueller-James Fallows analysis, get used to it and anyway the chances of you getting killed by terrorism are smaller than a lightning strike.

The American public does not buy the “get used to it” approach and so, at least as a matter of public speeches and public stances, no American administration will do so, either.  Instead, the argument divides over offensive versus defensive approaches, and over strategies that adopt a strategic view encompassing both a strategic vision that includes going on offense against terrorists as well as defensive strategies, contrasted with strategies that are, by their nature, tactical and defensive.  The American political class is quite divided over this strategic question — viz., can there be a “strategy,” or is the only strategy really a defensive retreat to defensive tactics?

This deep seated “foundational” disagreement over the nature of terrorism and the response to terrorism has a further twist, however.  Given the deep foundational disagreement over the proper kind of response, at the deepest conceptual level, the tendency is to retreat — as a procedural matter for how to make a decision — to the lowest common denominator.  Where there is deep foundational disagreement as to the nature of the threat, how to respond, whether there is any real scope for holistic strategies or whether the “strategy” must necessarily be responsive and tactical and defensive — the tendency as a matter of procedure, of how policy is made, is to retreat to the shared lowest common denominator.

That lowest common denominator is a form of narrow cost benefit analysis that emphasizes things with which no one could really disagree.  We can’t agree how to fight terrorism, or even whether to fight it — but we can agree that metal detectors at airports are a good thing.  (It turns out, enough years out from 9/11, that many people in the political class, think that much of the apparently undisputed matters of agreement are not worth the trouble either, but in general, the tendency of policy is toward obvious things that are driven by cost benefit analysis in some way that gets past the foundational disagreements.)

The problem with this form of cost benefit analysis, however, is that as Philip Bobbitt once observed to me, it is purely reactive, defensive, and “relentlessly tactical.”  But the problem is, what happens if your political classes are deadlocked around what a “strategy” should look like, if anything?  You are driven back by process alone to the “relentlessly tactical.”  Actually, it is worse than that.  Not only are you driven back to reactive, defensive, tactical, and narrow forms of cost benefit analysis — you are driven to forms of it that are nearly inevitably what I’ve sometimes called “event specific-catastrophism.”  Meaning by that, the nature of your cost benefit analysis causes you to proceed serially, from one bad event and its prevention to the next — the nature of the CBA does not really offer a way to give a holistic strategy by which you might get ahead of events and threatened catastrophes.

Why not?  Because the nature of your political processes and the divisions of the political class preclude one from embracing any foundations — deep foundational assumptions — about the nature of the enemy, or even, in any sense meaningful to strategy, to the idea of having one.

I once wrote about the problems of foundational disagreement in the response to terrorism, and the limits of cost benefit analysis.  It was not a great paper, to be honest, and I hoped that the circumstances that impelled that paper would simply go away.  But they have not.  So I’m going to link it here.  “Event-specific catastrophism” is a clumsy term, sure — but it gets at a deep problem with cost benefit analysis of the kind that currently drives policy.  Relentlessly tactical, reactive, defensive … that form of strategic minimalism is fine as a judicial philosophy, as Cass Sunstein has articulated, because to judge is mostly to react, and in a democratic society, the fundamental terms to which one reacts as a judge ought to be made elsewhere.  But the relentlessly serial nature of CBA does not allow it (except by twisting it into something it is not) to embrace such fundamentally strategic ideas as, for example, envelopment and gambit.

Not everything is like judging, and a philosophy of adjudication is not the same as policy and politics simpliciter.  Sometimes you need foundational assumptions, and you need a strategy to get ahead of the other side.  To do that, however, you need a method that accepts that “they” are a “side” and not just a lightning strike.

Enhanced Security My Tuchus!

by Kevin Jon Heller

I rarely agree with our colleagues at the Volokh Conspiracy, but I think Jonathan Adler is right on the mark when he describes the TSA’s security measures as “political theater.”  It’s all about creating the illusion of safety, not actual safety.  An erstwhile terrorist needs more than 100ml of a particular liquid to make a bomb? Let’s hope he’s not smart enough to divide the liquid in two…

On a personal note, I returned to Melbourne yesterday from Los Angeles.  The radio warned international travelers to arrive at LAX earlier than normal, because of the enhanced security the TSA was adopting in the wake of the incident on the flight from Amsterdam to Detroit, so I sucked it up and arrived three hours early.  (I usually arrive two, because I have premium check in.  One of the perks of everything being thousands of miles away from Australia — oodles of frequent-flyer miles.)  It took me a grand total of seven minutes to get from the curb outside the terminal to the gate.  Security was nowhere to be found — there weren’t even LAPD officers at the normal checkpoint on the road that leads to the departure level.  No one asked me if I had packed my own bags or whether they had been in my control.  I breezed through the metal detectors even though I had forgotten to remove two bottles of liquid, one of which was larger than 100ml, from my bag.  And the TSA officer at the metal detector didn’t even ask for my boarding card.

The most amusing “enhanced security” measure has to be not allowing air shows on international flights — the program in the in-flight entertainment that tracks the plane’s progress and tells you how long until arrival.  Apparently, the TSA thinks that the air shows will help terrorists determine the best time to do something untoward on the plane.  Because, you know, now they will have no idea when the plane is landing — not from the steward’s announcement on the intercom that breakfast will be served 90 minutes before final descent, and certainly not from the captain’s announcement that the plane is starting its landing run.  Without the air show, it’s like teleporting — you take off, and then all of a sudden you’re there!

I feel safer already.

The Violent Political Economy of Rare Earths

by Chris Borgen

The New York Times has a very interesting article on the mining of rare earths, a group of elements that are particularly important for green technologies.  The Times piece begins like this:

Some of the greenest technologies of the age, from electric cars to efficient light bulbs to very large wind turbines, are made possible by an unusual group of elements called rare earths. The world’s dependence on these substances is rising fast.

Just one problem: These elements come almost entirely from China, from some of the most environmentally damaging mines in the country, in an industry dominated by criminal gangs.

Western capitals have suddenly grown worried over China’s near monopoly, which gives it a potential stranglehold on technologies of the future.

In Washington, Congress is fretting about the United States military’s dependence on Chinese rare earths, and has just ordered a study of potential alternatives.

Here in Guyun Village, a small community in southeastern China fringed by lush bamboo groves and banana trees, the environmental damage can be seen in the red-brown scars of barren clay that run down narrow valleys and the dead lands below, where emerald rice fields once grew.

Criminal gangs, geopolitics, and environmental collapse, make for a dangerous cocktail. This article highlights an important issue that (as far as I can tell) has been under-reported .

The New Scientist on the Coming of the Polyglot Web

by Chris Borgen

Britain’s New Scientist has a short piece on the arrival of non-Latin script Internet addresses in 2010. They explain:

Net regulator ICANN – the Internet Corporation for Assigned Names and Numbers – conceded in October that more than half of the 1.6 billion people online use languages with scripts not fully compatible with the Latin alphabet. It is now accepting applications for the first non-Latin top level domains (TLDs) – the part of an address after the final “dot”. The first national domains, counterparts of .uk or .au, should go live in early 2010. So far, 12 nations, using six different scripts, have applied and some have proudly revealed their desired TLD and given a preview of what the future web will look like.

The first Arabic domain is likely to be Egypt’s and in Russia orders are already being taken for the country’s hoped-for new TLD. The address HOBЫЙyЧеНЫЙ.pф – a rough translation of “newscientist” with the Cyrillic domain that stands for Russian Federation – can be registered today.

Though they will be invisible to many of today’s users, these changes are a bellwether for the web’s future. Today Latin-script languages predominate. But before long Chinese will overtake English as the most used language, and web use in other places with scripts of their own, such as India and Russia, is growing fast. The Middle East is spawning new users faster than any other region.

On the one hand, the use of non-Lain script will likely make the web accessible to many more people who will not have to learn a new script in order to navigate the web.  The New Scientist piece argues that this is a step towards making the web truly worldwide. Others have reached a different conclusion, based on concerns that injecting non-Latin  scripts into the URLs  will cause  the World Wide Web to be less worldwide rather more regional, national, or linguistic. These subwebs may have deeper interconnectivity within themselves but there will only be lighter connections from one linguistic web to another.

Time will tell whether 2010 will mark a sea change of the Internet, or whether this is much ado about nothing.

Hat tip: io9

A Merry Christmas and Best Wishes in the Holidays

by Kenneth Anderson

A very Merry Christmas to our celebrating readers, and to everyone, a happy holiday and best wishes in the New Year.  I would like to report for the record that NORAD got it right, and … Santa came!

The Trial Chamber’s Flawed Decision Upholding Stand-By Counsel

by Kevin Jon Heller

The Trial Chamber has — completely unsurprisingly — rejected Dr. Karadzic’s motion challenging Richard Harvey’s appointment as stand-by counsel.  As I explained in a previous post, that challenge was based on three grounds: (1) Harvey’s appointment violates Article 21(4) of the ICTY Statute, which provides that a defendant has the right “to communicate with counsel of his own choosing” and “to defend himself in person or through legal assistance of his own choosing”; (2) Harvey’s appointment violated two provisions of the Registry’s own “Directive on Assignment of Counsel,” one pertaining to assignment of the defendant’s chosen counsel, the other governing conflicts of interest; and (3) Harvey’s appointment violated the Appeals Chamber’s statement in Seselj that “the Rule 44 list of counsel should be provided… and [the defendant] should be permitted to select standby counsel from that list.”

In this post, I want to focus on the TC’s rejection of the second and third argument.  Before turning to the merits of the TC’s decision, though, I want to point out once again the troubling pettiness that the TC continues to exhibit toward both Dr. Karadzic and the Appeals Chamber regarding the expression “Rule 44 list of counsel.”  As the quote above indicates, the AC coined that expression in Seselj; that’s why Dr. Karadzic has used the expression in his motions.  Everyone knows what the AC meant — it was referring to the list of counsel who satisfy the substantive requirements of Rule 44.  Yet the TC feels that it is necessary to remind the AC and Dr. Karadzic that, taken ridiculously literally, the expression “Rule 44 list” is inaccurate:

[N]othing in Rules 44 or 45 of the Rules leads the Chamber to the conclusion that there is such a thing as a “Rule 44 list.”  Instead, these Rules clearly provide that a list of counsel is to be kept in accordance with Rule 45(B).  This view is also held by the Registrar.

The TC then proceeds to insert a “[sic]” when either Dr. Karadzic or the Appeals Chamber uses the expression “Rule 44 list.”  (See para. 35 for the latter, where the TC inserts a “[sic]” twice!)

This may seem like a small matter, but it is indicative of the TC’s dismissive approach to the AC’s jurisprudence on self-representation.  The TC may disagree with that jurisprudence, but it remains bound by it.  And it is worth remembering that it was precisely the same kind of dismissiveness by the TC toward the AC that led to Seselj becoming such a procedural nightmare.  The TC is free to mock Dr. Karadzic all it wants, however unseemly such mocking may be.  But the TC needs to take the AC seriously, even if doing so requires it to reach conclusions it doesn’t like.

Now let’s look at the substance of the TC’s decision…

Roosevelt’s Christmas Eve Address–December 24, 1943

by Roger Alford

Sixty-six years ago today, President Franklin Roosevelt addressed a national radio audience to discuss his recent meeting with Winston Churchill and Joseph Stalin at the Tehran Conference. Stalin secured commitments to open up a second front against Germany. Roosevelt secured a commitment from Stalin to support an international security organization.

1943 was the turning point in the war, with victories in Stalingrad, North Africa, and Sicily. There was great cause for hope for the coming year. 1944 saw the Allied invasion at Normandy in June, the Big Four meeting at Dumbarton Oaks to establish the United Nations in August, and the liberation of Paris.

Here are a few choice paragraphs. (Full audio and text here):

On this Christmas Eve there are over ten million men in the armed forces of the United States alone. One year ago 1,700,000 were serving overseas. Today, this figure has been more than doubled to 3,800,000 on duty overseas. By next July first that number overseas will rise to over 5,000,000 men and women….

But — on Christmas Eve this year — I can say to you that at last we may look forward into the future with real , substantial confidence that, however great the cost, “peace on earth, good will toward men” can be and will be realized and ensured. This year I can say that. Last year I could not do more than express a hope. Today I express — a certainty though the cost may be high and the time may be long….

Within the past year — within the past few weeks — history has been made, and it is far better history for the whole human race than any that we have known, or even dared to hope for, in these tragic times through which we pass….

At Cairo and Teheran we devoted ourselves not only to military matters, we devoted ourselves also to consideration of the future — to plans for the kind of world which alone can justify all the sacrifices of this war….

Tonight, on Christmas Eve, all men and women everywhere who love Christmas are thinking of that ancient town and of the star of faith that shone there more than nineteen centuries ago. American boys are fighting today in snow-covered mountains, in malarial jungles, and on blazing deserts, they are fighting on the far stretches of the sea and above the clouds, and fighting for the thing for which they struggle. I think it is best symbolized by the message that came out of Bethlehem.

On behalf of the American people — your own people – I send this Christmas message to you, to you who are in our armed forces: In our hearts are prayers for you and for all your comrades in arms who fight to rid the world of evil. We ask God’s blessing upon you — upon your fathers, and mothers, and wives and children — all your loved ones at home. We ask that the comfort of God’s grace shall be granted to those who are sick and wounded, and to those who are prisoners of war in the hands of the enemy, waiting for the day when they will again be free.

And we ask that God receive and cherish those who have given their lives, and that He keep them in honor and in the grateful memory of their countrymen forever. God bless all of you who fight our battles on this Christmas Eve. God bless us all. Keep us strong in our faith that we fight for a better day for human kind — here and everywhere.

Just reading or listening to this speech will make you thankful for the (relative) peace on earth we currently enjoy.

Tracking Santa, with the Help of NORAD

by Chris Borgen

Since 1955 NORAD (and its predecessor CONAD) has tracked Santa’s each Christmas Eve and has answered questions for boys and girls about his progress. NORAD’s Santa tracking service uses interactive maps updated every few minutes at http://www.noradsanta.org. As Santa stops in each location, you can click an icon to learn more about that part of the world. There is also a 3D option using Google Earth. Moreover, there are links to update clips being posted on YouTube.

And you can also call NORAD and speak to someone there at 1-877-Hi-NORAD (1-877-446-6723) or e-mail the staff at noradtrackssanta [at] gmail [dot] com and get a return e-mail listing Santa’s most recent location. There are now Facebook and Twitter options as well, along with updates that can be sent directly to your mobile phone.

According to the current update (as of this writing):

NORAD has confirmed that Santa and his fully-loaded, reindeer-powered sleigh took off from the North Pole and soared into the arctic sky at 6:00 a.m. EST (5:00 a.m. CST, 4:00 a.m. MST, 3:00 a.m. PST). NORAD radar is tracking Rudolph’s bright red nose, and satellite imagery is providing minute-by-minute coverage of Santa’s location.

Here’s how NORAD does it:

NORAD uses four high-tech systems to track Santa – radar, satellites, Santa Cams and fighter jets.

Tracking Santa starts with the NORAD radar system called the North Warning System. This powerful radar system consists of 47 installations strung across the northern border of North America. On Christmas Eve, NORAD monitors the radar systems continuously for indications that Santa Claus has left the North Pole.

The moment that radar indicates Santa has lifted off, we use our second detection system. Satellites positioned in geo-synchronous orbit at 22,300 miles from the Earth’s surface are equipped with infrared sensors, which enable them to detect heat. Amazingly, Rudolph’s bright red nose gives off an infrared signature, which allow our satellites to detect Rudolph and Santa.

The third tracking system is the Santa Cam network. We began using it in 1998, which is the year we put our Santa Tracking program on the internet. Santa Cams are ultra-cool, high-tech, high-speed digital cameras that are pre-positioned at many locations around the world. NORAD only uses these cameras once a year on Christmas Eve. The cameras capture images and videos of Santa and his reindeer as they make their journey around the world.

The fourth system is made up of fighter jets. Canadian NORAD fighter pilots flying the CF-18 intercept and welcome Santa to North America. In the United States, American NORAD fighter pilots in either the F-15 or the F-16 get the thrill of flying alongside Santa and his famous reindeer: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, Blitzen and, of course, Rudolph.

There is also a list of FAQs including technical data on Santa’s sleigh, intel regarding his girth, and the following handy fact:

How can Santa travel the world within 24 hours?
NORAD intelligence reports indicate that Santa does not experience time the way we do. His Christmas Eve trip seems to take 24 hours to us, but to Santa it might last days, weeks or even months. Santa would not want to rush the important job of delivering presents to children and spreading Christmas to everyone, so the only logical conclusion is that Santa somehow functions within his own time-space continuum.

And, perhaps most importantly for any of us with excited little ones:

When will Santa arrive at my house?
NORAD tracks Santa, but only Santa knows his route. So we cannot predict where and when he will arrive at your house. But we do know from history that it appears he arrives only when children are asleep! In most countries, it seems Santa arrives between 9:00 p.m. and midnight on Christmas Eve. If children are still awake when Santa arrives, he moves on to other houses. He returns later…but only when the children are asleep!

Preliminary Thoughts on the Copenhagen Accord

by Dan Bodansky

Although most countries endorsed the Copenhagen Accord, few left Copenhagen in a positive mood. The general lack of enthusiasm about the outcome was exacerbated by the procedural wrangling on the final day about whether to “adopt” or merely “take note of” the Accord, which left delegates in a dispirited mood, both about the prospects for halting climate change and about the UNFCCC process more generally, which was hijacked at this meeting by the likes of Sudan and Venezuela.

Is the Copenhagen Accord a cause for celebration or sorrow? Should it be deemed a success? As always, the answer depends on how we define success (and, of course, on future events).

If our standard is problem-solving, then I think virtually everyone would agree that the Copenhagen Accord does not put us on an emissions pathway that would achieve the UNFCCC’s ultimate objective, namely, to prevent “dangerous anthropogenic interference with the climate system.” Most scientists think that preventing dangerous climate change requires us to limit CO2 concentrations to, at most, 450 ppm and to limit temperature change to 2 degrees Celsius – and some think that we should be aiming for 350 ppm (less than current concentration levels) and 1.5 degrees temperature change. A UN report leaked during the conference confirmed what most observers already knew – namely, that the emissions reduction pledges that the US, EU, Japan, China, India, Brazil and other major economies put on the table prior to Copenhagen (which the Copenhagen Accord is intended to memorialize) do not put us on a pathway to 450 ppm/2 degrees temperature change, much less the more ambitious goals of 350 ppm and 1.5 degrees.

Another test of effectiveness proposed by political scientists is behavioral change: Is the Copenhagen Accord likely to cause states to change their behavior? Again, the answer depends in part on our reference point. The emissions reduction numbers that are expected to be memorialized in the appendices to the Accord are likely to be the same as those that countries already made public prior to Copenhagen: a 20% reduction in absolute emissions (relative to 1990 levels) by EU countries, a circa 17% reduction by the US (relative to 2005) levels, a 40-45% reduction in carbon intensity by China, a 20-25 reduction in carbon intensity by India, and so forth. So it would appear that the Copenhagen Accord will merely confirm what states were already planning to do, rather than leading them to ratchet up their level of effort. But I think that Copenhagen supporters are also probably right that, but for the Copenhagen process, countries would not have made these emission reduction pledges in the first place. So the Copenhagen conference was arguably important as a means of spurring national action (or at least pledges of action – whether countries actually meet their pledges remains to be seen).

A third test of success is whether Copenhagen achieved as much as politically possible. Was it the best that one could have realistically hoped for, or did it leave money on the table, so to speak? This is the test of effectiveness proposed by Arild Underdal (of the University of Oslo) and others. Scored on this basis, I think Copenhagen was a big success. Granted, the Copenhagen Accord is weak in many respects: it is a political rather than a legal instrument (nor does it even call for negotiation of a legal agreement); it does not include any long-term goal for emission reductions (for example, the 50% reduction by 2050 that OECD countries have endorsed) or greenhouse gas concentrations; it does not contain more ambitious emission targets; and it does not establish a compliance system for either developed or developing countries. But I don’t think anyone could have reasonably expected any of these outcomes, given the opposition of some developing countries (in particular, China) to emissions reduction commitments or to international verification much less a compliance system, and given the unwillingness of (a) the US to accept binding emission targets if China does not do so and (b) the EU to accept a second commitment period of Kyoto if the US does not have comparable, legally-binding commitments and if China and other major developing country economies do not accept a legal agreement with emissions reduction pledges.

The Copenhagen Conference put in sharp relief the inconvenient truth that the legal position of China and other major developing countries (including India) has moved very little since the UNFCCC process began almost two decades ago: they continue to argue (with some justification!) that they should not be subject to emissions reduction commitments because they did not create the climate change problem and have less capacity to address it. The 1995 Berlin Mandate allowed the regime to “progress” by focusing only on developed country emissions, leaving developing country emissions to the side. But since the adoption of the Marrakesh Accords in 2001, the central axis in the negotiations has shifted from EU-US to developed-developing.

At each successive COP, the inability to make progress on the core substantive issues has been papered over by decisions that focused either on procedure (setting up the two ad hoc working groups on the KP and UNFCCC in 2005 and 2007 respectively) or on less controversial issues such as adaptation. But this situation could not continue indefinitely, and Copenhagen brought to a head the continued divisions between developed and developing countries.

Given this dynamic, the Copenhagen Accord represents a potentially significant breakthrough, which required direct negotiations between President Obama and the leaders of China, India, Brazil and South Africa (joined later by the EU and another dozen or so other countries). As a political necessity, the Accord continues to reflect the principle of common but differentiated responsibilities. On the one hand, developed countries committed to implement economy-wide emission reduction objectives (which will be listed in an appendix), subject to international monitoring, reporting and verification (MRV). On the other hand, developing country actions are explicitly subject to international MRV only if they receive financial support. Nevertheless, the Copenhagen Accord reflected a considerable shift by China, India, Brazil and South Africa, which begins to break the so-called “firewall” between developed and developing countries. For the first time, the major developing countries agreed to reflect their national emission reduction pledges in an international instrument and to report on their mitigation actions in biennial national communications, which will be subject to “international consultation and analysis under clearly defined guidelines that will ensure that national sovereignty is respected.” This may seem like a rather modest achievement; but it represents the first time that these countries accepted any type of “internationalization” of their pledges and any kind of international review.

Only the future will tell whether the Copenhagen Accord represents a genuine shift of views by China, India and other developing countries, or a one-time event, grudgingly accepted under unusual pressure. Although the Accord asserts that it will be “operational immediately,” fully operationalizing its terms will require further acts – for example, to spell out the “guidelines” for international consultation and analysis of developing country actions, and to establish the various bodies envisioned in the Accord (a High Level Panel to study potential sources of revenue, the Copenhagen Green Climate Fund, and a new Technology Mechanism). Ordinarily, this work would be carried out by the COP. But given the inability in Copenhagen to get a COP decision adopting the Copenhagen Accord, the prospect for implementing the Accord through COP decisions appears uncertain at best, and it is unclear what other forum could do so. Thus, it would be relatively easy for a subset of developing countries to undermine the Copenhagen Accord through procedural gambits.

The first test will come next month, when countries are supposed to come forward with their emission reduction numbers for the Accord’s appendices. Will some developing countries attempt to block the Accord from taking effect, by not allowing the UNFCCC secretariat to serve as the focal point for receiving these national submissions? Let us hope not, since the Copenhagen Accord – as the most that world leaders could agree through extraordinary, direct negotiations — is likely to represent the high-water mark of the climate change regime for some time to come.

Space Lawyers and the UN, a Heinlein Special Edition

by Kenneth Anderson

The UN Secretary General … circa 2050, Earth, talking with Kip who, along with Peewee, has just saved the Earth from invading aliens who were using the Moon as a forward base:

“Russell, I heard on your tape that you plan to study engineering – with a view to space.”

“Yes, sir.  I mean, ‘Yes, Mr. Secretary’.”

“Have you considered studying law?  Many young engineers to want to space – not many lawyers.  But the Law goes everywhere.  A man skilled in space law and meta-law would be in a strong position.”

“Why not both?”  suggested Peewee’s Daddy.  ”I deplore this modern overspecialization.”

“That’s an idea,” agreed Mr. van Duivendijk.  ”He could then write his own terms.”

A couple of notes on this classic juvenile sci-fi book by Robert Heinlein from the 1950s, Have Spacesuit Will Travel.  Already proposing joint degrees!  What’s “meta-law” supposed to be, anyway?  What about women skilled in space law and meta-law by 2050?  Do we like “to space” as a verb?  Does “the Law go everywhere”? (more…)

Sleepless in Copenhagen

by Dan Bodansky

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(Cross posted on Smith School of Enterprise and Environment)

Copenhagen, December 19 – The Copenhagen conference limped to a finish mid-day Saturday after “working” throughout the night. These all night sessions on the closing day are becoming a COP ritual, with people spending most of their time waiting around the conference room while small huddles of key delegations try to find a face-saving way to declare victory and go home.

The issue last night was how the so-called Copenhagen Accord that President Obama had personally helped to broker during his 12 hour touchdown in Copenhagen on Friday would be reflected in the official decisions of the conference. The Danes proposed that the Copenhagen Accord be adopted as a COP decision, but a small group of countries that had played the spoiler role throughout the conference (Sudan, Venezuela, and Bolivia, joined last night by Cuba and Nicaragua) objected, arguing that the Copenhagen Accord be included simply in a “miscellaneous” (or “MISC”) document, with the same status as the submission, say, of Tuvalu. Ultimately, the impasse was broken through a decision to “take note of” the Copenhagen Accord, giving it some status in the UNFCCC process but not as much as approval by the conference of the parties.

<br /Inside conference center>


The debate last night continued the theme of legitimacy that I discussed in my previous post. The spoiler countries couched their arguments in the language of legitimacy, arguing that adoption of an agreement made by a limited group of countries behind closed doors would be illegitimate and undemocratic. (The rhetoric on this was really quite amazing.) Since the Copenhagen Accord had been initially agreed among the US, China, India, Brazil and South Africa, joined later by the UK, Germany, and France, among others, and since the agreement had been endorsed by all of the UN regional groups, this led to the bizarre spectacle of a handful of countries essentially thumbing their nose (through UN procedures) at a decision personally agreed by the heads of state(or government) of all of the major world powers and endorsed by the vast majority of countries at the meeting.

Two other quick observations about Copenhagen. First, the Conference revealed the deep fissures among developing countries on the climate change issue and the complete breakdown of the G-77 as a negotiating block. In the closing plenary last night, Papua New Guinea openly said that in the Copenhagen Accord negotiations on Friday, proposals for stronger language about emissions reductions (which small island states had desperately sought) had been blocked by major developing country emitters (i.e., China and India), not by developed countries. He went on to chastise other developing countries for sending mid-level negotiators to the final meetings where the Copenhagen Accord was hammered out, rather than their heads of state – a signal of disrespect to the heads of state in the room working on the deal.

Second, the Conference brought home for me the power of the internet as a source of information. Throughout Friday, participants inside the Bella Center who had sweated blood to get their names on the small list of those who were admitted had virtually no idea what was going inside the building. This included not only environmental and business observers, but 99% of the government delegates – in essence, all but the extremely small number of people actually working on the deal. As the day unfolded, I found that the most reliable source of information was not what people were saying inside the conference hall (virtually all of which was simply rumor) but rather the AP pool twitter site, which came from reporters staked out around the room where the negotiations were actually being conducted. So, ironically, rather than spend the time, money, and carbon emissions to come to Copenhagen, one could have followed the conference equally well (or, in some respects, better) in the comfort of one’s own home!