Archive for
December, 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”? Continue Reading…

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!

The Physics of Battles in Space

by Kenneth Anderson

I do realize that Copenhagen is still underway, so this is a little like whispering in church (I’ll put it mostly under the fold) … however, it’s a Friday afternoon, and this Gizmodo article on the physics of combat in space was highly distracting.  The most interesting bit to me was the observation that in a war between planets, functional trajectories of approach are not unlimited.  Launch windows and orbital relations between the planets matter hugely.  There are logical places for defense, in other words, even if they shift over time with the planet’s solar orbits, beyond the planetary defensive orbit itself.  This means room for strategy in space combat, in other words, and not merely tactics in skirmishing among ships.

A Constitutional Conversation

by Duncan Hollis

I want to interrupt our Copenhagen focus to briefly flag a conversation that’s on-going over at EJIL: Talk!  My Temple Law colleague, Jeff Dunoff, along with Joel Trachtman (The Fletcher School) recently put out a new work–Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge, 2009), which is the focus of EJIL’s latest on-line symposium.  Here’s a description of the book project in brief:

Ruling the World?: Constitutionalism, International Law, and Global Governance provides an interdisciplinary analysis of the major developments and central questions in debates over international constitutionalism at the UN, EU, WTO, and other sites of global governance. The essays in this volume explore controversial empirical and structural questions, doctrinal and normative issues, and questions of institutional design and positive political theory. Ruling the World? grows out of a three-year research project that brought twelve leading scholars together to create a comprehensive and integrated framework for understanding global constitutionalization. Ruling the World? is the first volume to explore in a cross-cutting way constitutional discourse across international regimes, constitutional pluralism, and relations among transnational and domestic constitutions. The volume examines the core assumptions, basic analytic tools, and key challenges in contemporary debates over international constitutionalization.

The EJIL Talk! symposium has so far featured posts by Dunoff and Trachtman along with one of the contributing authors, Mattias Kumm (New York University/Harvard); two other contributors, Andreas Paulus (Gottingen) and Neil Walker (Edinburgh Law School), are also scheduled to post at some point.  Meanwhile, EJIL Talk! brought in some outside commentators with posts so far by David Schneiderman (University of Toronto) and Nico Kirsh (Hertie School of Governance, Berlin); future contributions are anticipated from Robert Howse (New York University) and Gráinne de Búrca (Fordham/NYU).  It’s a pretty rigorous and thoroughly thoughtful conversation.  So, if you need a break from what’s not happening in Copenhagen, check it out.

Overcoming distrust – the need for a global climate finance registry

by Bryce Rudyk

The one thing that has become abundantly clear this week at Copenhagen is that there is very distinct lack of trust between developed and developing countries. This came to a head on Monday with the walkout of some of the G77 countries as they believed that developed countries were attempting to scrap the Kyoto Protocol.

A critical element in building trust and securing a deal is climate finance; public and private funding by developed countries for mitigation and adaptation in other developing countries. Some recent progress has been made on this issue. A consensus is emerging among developed countries on significant “Fast Track” funding for the next several years. Also, the recent AWG-LCA Chair’s draft, recognizes that private finance through carbon markets should be included in climate finance arrangements along with public funds. However, there is still no agreement on long-term financing, regulatory and other mechanisms, or governance structures.

The impasse stems from two basic problems: first, the lack to date of credible and substantial developed country commitments on public funding; and second, the absence of institutions and governance structures to ensure both equity and environmental effectiveness in climate finance.

Public Finance

Developing countries—wary from a half-century of often-frustrating experience with official development assistance (ODA)—are rightly skeptical of developed country assurances regarding future climate finance through public funding arrangements. The gap between promises and performance in general ODA, including the problem of the “disappearing donor,” is well known. Developed countries, on the other hand, are generally only willing to spend to spend significant domestic funds on international projects when they can maintain flexibility regarding future spending levels depending on program performance, unforeseen developments, and competing priorities.

At the same time, developing countries are seeking to replace or reform existing donor-dominated multilateral institutions, in favor of new structures that give them significant decision-making power over cost sharing, conditionality, and disbursement and use of funds. Developed countries, on the other hand, are rightly unwilling to commit funds without mechanisms to ensure adequate financial controls and assurances of positive environmental outcomes.

Although Mexico and Norway (among others) have very recently re-proposed a single global fund to collect and disperse all climate-related finance, such an agreement is politically infeasible and unsuited to advance the policy needs of decentralization, innovation and experimentation.

Private Finance Through Carbon Markets

Moreover, there is no way that such a fund could include private finance through carbon markets, which must play a major role in any carbon finance arrangements. Even if a single multilateral fund is established to receive and disburse public funds, such funds will, for a variety of reasons, continue to flow through bilateral and other arrangements. Climate finance will also be provided through a variety of means, including loan guarantees, concessionary debt, insurance, and mechanisms such as George Soros’ proposal to use IMF special drawing rights to leverage climate mitigation. Private capital through carbon markets will also be generated through a variety of channels. The EU, US, and other OECD countries are unilaterally developing domestic or regional cap-and-trade and offset credit systems that will likely become the main vehicle for private climate finance. This will fragment the existing multilateral Clean Development Mechanism (CDM) approach and potentially marginalize developing countries’ role in governance.

A Global Climate Finance Registry

In order to promote and track compliance with a climate finance deal, we envisage a global climate finance registry (with balanced governance) of funding commitments and actions financed by those funds, including all forms of both private and public finance, and covering both developed and developing countries. Because future climate finance mechanisms will be highly pluralistic, operating through a variety of bilateral, plurilateral, and multilateral arrangements, a single global registry is needed to recognize, track and ensure domestic verification of all of the many different undertakings and programs and present an aggregate accounting.

Recognizing that transparency is necessary for countries to judge the efforts of others, hold them accountable, and draw countries into compliance with their commitments, the global registry would build on current proposals for NAMA registries so as to include both public and private financing commitments (including those taking the form of credit offset programs under domestic ETS) from all relevant countries, as well as the fulfillment of these commitments.

Developing and operating a global finance registry should be the responsibility of an international body enlisting the participation of all nations. The registry would not disburse or spend funds or regulate carbon markets. Those actions would be carried out by an array of different international and domestic authorities.

The Registry would make important contributions by accounting for and reporting on the undertakings and outcomes achieved by these different bodies, serving as a clearing house for best practices for mitigation and adaptation performance assessment methodologies and results-based financial accountability, and promoting harmonization in carbon market credit offset recognition practices by domestic and international regulatory bodies. It should accordingly strive to develop performance metrics for emissions reductions achieved through different modes of financing.

The details of such a registry and other elements of a global regime for climate finance cannot feasibly, or appropriately, be resolved in the short term. But the Copenhagen process must, at a minimum, reach agreement on a comprehensive framework and set of principles for both public and private climate finance as well as an agenda for future elaboration and implementation. Such agreement (which should include credible arrangements for significant adaptation as well as mitigation funding) is essential to winning developing country trust and engagement and providing resources sufficient to curb, and adapt to, anthropogenic climate change. An agreed architecture and correlative set of undertakings for developed and developing country emissions reductions is also indispensible. But without the finance to achieve those reductions, the architecture by itself will be largely a façade.

The Illegitimacy of “Legitimacy”

by Daniel Bodansky

[Professor Dan Bodansky is continuing his dispatches from the climate change talks.  This post is cross-posted at the Smith School of Enterprise and Environment at Oxford.]

Copenhagen, December 17 – With the hours counting down to the end of the Copenhagen conference, real substantive negotiations have yet to begin. Instead, the focus has been almost exclusively on procedure. All week, the Danes have wanted to put forward their own compromise text, which would be negotiated in a smaller group – the approach typically used to hammer out an agreement. But some developing countries – most notably Sudan, Bolivia and Venezuela (apparently with the (at least) tacit support of China) — have rejected this approach, arguing that it lacks transparency and is hence illegitimate. Instead, they have insisted that the only “legitimate negotiating process” is to continue to negotiate on the basis of the heavily bracketed text that emerged over the last two years in the two ad-hoc working groups, in negotiating groups open to participation by all parties. In my view, this process virtually guarantees that the Copenhagen conference will not produce a meaningful agreement, since the texts emerging from the two ad hoc working groups are a mess, with multiple options within options, and negotiating them in an open-ended group, with hundreds of delegations, is a prescription for deadlock.

The refusal by some developing countries to allow the Danes to introduce a text or to negotiate in a smaller group is made in the name of ensuring a legitimate, transparent, democratic process. But another way of understanding it is as a cynical effort by certain countries to use procedural objections to prevent a substantive agreement. Yesterday, after the Danes said they would table new texts, developing countries objected and the formal meetings were suspended for most of the day while the Danes consulted with developing countries about how to proceed. Reportedly, the G-77 (the developing country negotiated group) refused to participate in a smaller group organized by the Danish presidency to have substantive negotiations.

Today, in a desperate effort to move from procedure to substance, the Danes accepted the procedural approach insisted upon by developing countries. They promised not to introduce any new texts, and convened two “contact groups” that are open-ended in participation, to consider the texts forwarded from the ad hoc working groups. Meanwhile, it appears increasingly likely that the conference outcome will be a short political declaration largely devoid of substance, and a procedural decision to continue the “process,” such as it is. The ultimate question, of course, is whether there is a deal to be had that bridges the gap between the US, which wants a common legal framework for developed and developing countries (including common provisions on monitoring, reporting and verification); the major developing country economies, which want to preserve the strong differentiation reflected in Kyoto; and the European Union, which would be willing to commit to another round of Kyoto-like targets, but only if the US is subject to a comparable regime and developing countries are willing to join a new legal agreement that subjects them to stronger commitments.

Climate: Does the World Need a China-US Deal?

by Richard Stewart & Benedict Kingsbury

The Copenhagen process is multilateral, focused on reaching global agreements. But to get to a strong and truly effective global climate regime, bold bilateral initiatives may be needed. The conditions are propitious for a deal between China and the US, the world’s largest and second largest emitters, but that will call for imaginative and committed leadership on both sides as well as much political groundwork. Beijing and Washington could strike a deal under which each would undertake to limit emissions and the US would grant offset credits for reductions in China that could be used by US firms to comply with US domestic cap and trade regulation. The credit offset mechanism would deliver private financing and technology to China through carbon markets, probably through sector-based programs, and could be supplemented by measures for technology cooperation. This deal would bring the world’s two major emitters into an international emissions limitations agreement — something the Copenhagen process on its own may to achieve – and set the stage for a series of similar bilateral deals involving the EU and other developed countries as well as the US on one side, and China, India, Brazil and other major developing countries on the other. Such a web of bilateral deals could provide the foundation for negotiation of a more substantial and effective global climate agreement than Copenhagen or immediately following rounds of UN-global negotiations can now realistically achieve.
A China-US deal makes sense for both sides. China has already embarked on an ambitious energy efficiency drive, which forms the basis for its recent undertaking to reduce emissions intensity by 45%. China has economic, political and environmental reasons for its actions. China has much to gain from nationwide energy efficiency, and for some technologies (e.g. renewable energy and power stations) a large domestic market will also provide a springboard for exporting this technology. A deal with the US could bring in welcome infusion of additional capital and know how as well as markets for many Chinese technologies. Politically, China can benefit from showing leadership on a major global issue, and from maintaining access to markets in countries with emissions controls; and the Chinese government is alert to adverse impacts of climate change in China and the accompanying threat of social unrest and political destabilization. Environmentalism too has rising affirmative salience in Chinese public and governmental thinking.

From the US perspective, bringing China into an international limitations agreement would reduce leakage of investment and jobs as well as securing climate benefits and meeting the domestic US political demand for action by China as a condition for the US to undertake strong regulatory limitations on greenhouse gas emissions.

A China-US deal could overcome a major impasse in the Copenhagen process concerning measuring, review, and verification (MRV) of emissions reductions. China has argued strongly that MRV requirements apply to developed (Annex I) countries but should not apply to China or to any developing countries. But assuming Congress manages to pass legislation adopting a cap and trade greenhouse gas regulatory system, this will likely authorize the US Environmental Protection Agency (EPA) to implement a credit offset program under which some emissions reductions in developing countries generate credits that can be sold into the US market. This is politically plausible because offsets generated by emissions reductions in China would reduce compliance costs to US emitters while at the same time creating business opportunities for US firms. Some equivalent of MRV will be part of any such system administered by the US EPA. So China may see benefits in accepting, at least bilaterally, some kind of MRV to gain access to that market, all the more so if the EU and other emissions trading systems take a similar approach. If such a US system is established, President Obama may well be able to make a deal with China to award credits for its reduction by executive agreement, avoiding the political hazards of a treaty requiring Senate ratification.

Another critical element in climate deals for China will be border carbon adjustments, which the US (or the EU and others) may seek to impose on imports from countries without comparable emissions controls, in order to level the competitive playing field for industry and avoid leakage (migration of production to areas with weak emissions controls) or the undermining of climate objectives. China has sought to get agreement in the Copenhagen process to prohibit such measures. But US Congressional climate legislation is likely to include border carbon measures aimed at imports from major developing countries without emissions limitations, which will provide a further incentive for China to agree at least bilaterally on limitations (the trade measures in the Montreal Protocol seem to have influenced China to limit its production and use of ozone depleting chemicals.)

Bilateralism can be damaging, and those committed solely to achieving a global UN deal will bristle at this prospect. But a global-multilateral approach may not on its own produce enough. And while bilateral negotiations may be seen as a Western ploy to break up the G77+China negotiating group, it is not so clear that this group can necessarily serve the very divergent interests of its members on some key issues, as strains during the Copenhagen negotiations have demonstrated. Vulnerable island and low-lying states have understandably demanded that large emitters among developing as well as developed countries must accept much tougher emissions curbs. African delegates are right to protest that (with the partial exception of REDD for forests) too little is on the table at Copenhagen to address the interests of their peoples, who were and remain low emitters, bear high costs from reducing emissions (e.g. banning charcoal as fuel), have few resources to meet the costs of adapting to drought or other consequences of climate change, often lack electricity or other modern energy sources, and are unjustly beset by poverty and short life expectancies. A bilateral China-U.S. deal would do nothing to address these latter problems, but it might conceivably help open the way for a much stronger global deal with substantial emissions curbs and large financial flows in which adaptation, low-carbon development and even some basic climate justice receive more fundamental attention with rising stakes and more on the table.

Red herrings in debates over climate finance

by Arunabha Ghosh

One gets a new perspective on climate negotiations when your toes are about to fall off! It took me 8.5 hours of standing in sub-zero temperatures to get registered at the Bella Centre (and this is after I was only about fiftieth in line, showing up at 6.45am). There were thousands of people behind me when I last looked back. Not one official came out to explain what was happening or whether people should simply go home. If this level of mismanagement had occurred in a developing country, at best we would have called for ‘capacity building’; worse, we would have been reading about ‘poor governance’, ‘lack of foresight’, or even ‘disregard for basic human rights’. Seeing this, a potential recipient of climate finance in a developing country might wonder: why should a rich country taxpayer worry about mismanagement in poor countries when their own record does not seem to be much better? But an opponent of public finance for climate change might also ask: why should we believe that the UN or any other international body can handle $100 billion when it can’t manage a conference? Both sides would be right but their questions come from completely different perspectives. This is the fundamental divide in climate negotiations – there seems to be no reason to trust each other.

Much is written these days about the need for building trust. Political scientists and international lawyers offer many solutions: credible commitments to resolve time inconsistencies, contingent and conditionality-based support, procedures for monitoring and verification, reciprocity in actions, and compliance-oriented sanctions. But international negotiations, in general, and climate negotiations, in particular, have shown how difficult it is to either agree on such arrangements or to put them into practice. For instance, the Kyoto Protocol already suffered from an institutional design that postponed fines for non-compliance to future commitment periods. Worse still, if a completely new protocol is negotiated at Copenhagen or afterwards (as is the demand of developed countries), then the credibility of future compliance procedures will also be called into question.

The trust deficit is particularly deep on the question of climate finance. Current negotiations are unlikely to result in a substantive deal, notwithstanding a new Mexican-Norwegian joint proposal. Word in the corridors point more in the direction of a fudge, whereby short-term funding proposals will be made (like the recent EU announcement or the declaration at the Commonwealth summit); long-term institutional and financing questions will remain open for further discussions. But discussions on emissions reductions or low energy intensity targets without thinking about where the money will come from suggest a strategy of putting the cart before the horse. Remember that the Montreal Protocol needed the London Amendments of 1990, which included a financing mechanism, to gain acceptance from developing countries and facilitate effective implementation.

If Copenhagen does not deliver substantive outcomes on climate finance, in the minimum we could start building trust by exposing some of the red herrings that distract attention from in depth discussions.

Public versus private

A common demand from developing countries is for public finance support from rich countries for their mitigation and adaptation projects. A common refrain in developed nations is that big transfers of taxpayer money to poor countries is political infeasible. This is an unhelpful way to frame the climate finance debate. It is now well established that a funding mix is essential. As currently configured, carbon markets will not generate funding to match the actions required. The incremental costs of moving up the technology ladder – R&D, capital costs, intellectual property – imply public financing support. At the same time, public financing that does not facilitate sustainable business models to induce greater flows of private capital would result in cherry-picking technologies and entrenched vested interests in some sectors over others. Political leaders need to be more honest to taxpayers about the purpose of public funds to combat climate change. Treating it as merely development assistance is unhelpful, dishonest and undermines negotiations.

Us versus them

A second worry about any international arrangement on climate finance is the fear that this is a recipe to strengthen one’s competitors. This was implicit in Todd Stern’s comment during the negotiations that he did ‘not envision public funds, certainly not from the US, going to China.’ Yet, climate finance is needed to facilitate cooperation on research, development and deployment of clean energy technologies. In fact, in November China and the United States announced several joint initiatives, on energy efficiency, research on cleaner coal plants, electric vehicles, carbon capture and storage, and renewable energy, among others. Other bilateral and regional initiatives have included Australia, the EU, India and Japan in addition to China and the US. The main problem is that the sums involved are too small compared to the scale of investments needed.

Conditionality versus commitment

A related problem is that, on one hand, rich countries argue that they would not transfer funds unless recipients undertake to fulfil conditions, including clear programmes of action that are monitored and verified. In turn, poor nations want a credible commitment on financing before they promise to undertake actions. This chicken-and-egg debate stems from a long history of unmet funding commitments on the donor side (the record of the G8 on its Gleneagles promises being only the most recent example). Once again, as long as we think about climate finance as purely wealth transfers from rich to poor, the donor-recipient, conditionality-commitment, you-first-me-later morass will only become deeper.

A way forward

In a recent paper, Kevin Watkins and I propose a multilateral Low Carbon Technology and Finance Facility. It would use public funds to cover incremental costs for more efficient technologies. The facility would also adopt flexible modalities to leverage private investment, through concessional finance, loan guarantees, risk insurance, advance payment guarantees, and payment of intellectual property fees. Further, it would give rich and poor countries balanced representation in decision-making and in monitoring and reviewing both project performance and financial flows. It is unlikely that Copenhagen will be the venue for movement along these lines. But a constructive dialogue on governance questions will not begin unless we recognise how current narratives define and distract discussions on climate finance.

Update from Copenhagen

by Daniel Bodansky

Monday, December 14 – The climate negotiations ground to a halt for much of today, as negotiators debated the organization of work for the second and final week of the meeting. The ostensible cause of the breakdown was concern among (some?) developing countries that the Kyoto Protocol (KP) track in the negotiations is moving more slowly, and getting less attention, than the Convention track (the so-called Long-Term Cooperation Action track, or LCA) (although since the LCA track is itself moving very slowly, it is a bit difficult to understand the concern). For many members of the G-77, the differentiation enshrined in the Kyoto Protocol between developed countries (which have quantified emission reduction targets) and developing countries (which do not) is sacred. All last week, developing countries had been emphasizing the importance of continuing the Kyoto Protocol, rather than merging it into a single comprehensive agreement that addresses both developed and developing countries (as the EU, Japan and other industrialized countries would prefer). At the procedural level, this developing country position is reflected in a desire to maintain the complete separation between the two tracks in the negotiations, rather than merging them into a single discussion, as the Danes apparently envisioned.

But whether substantive concerns about the KP’s future fully explain today’s events is open to question The organization of work envisioned by the Danes (as COP president) had apparently received tacit approval at a ministerial meeting held on Sunday. So there is no reason why developing countries that had accepted the work program yesterday should suddenly object today. One possible explanation is that Sunday’s ministerial meeting included only a select group of about forty countries, and today’s work suspension reflected a move by the countries excluded from Sunday’s meeting to reassert themselves. Others speculate that today’s events reflect a reaction by working level negotiators worried that ministers might be too willing to reach agreement. Whatever the explanation, the COP lost the better part of a day, with only two days remaining now before heads of state arrive.

Ultimately, the Danish president convened a ministerial-level group to consider Kyoto Protocol issues, and a series of ministerial-led groups to consider particular issues in the LCA, including: the long-term goal of limiting temperature change (2 degrees, 1 ½ degrees, etc.), the way in which developing country actions are be reflected (a schedule, registry, etc.), and the scale of financial contributions. The other issues in the LCA, not elevated to the ministerial level, will continue to be discussed tonight and tomorrow morning in the various LCA contact groups, with the LCA (in theory) scheduled to wrap up its work tomorrow night and to report back to the COP on Wednesday morning.

Overall the conference is chaotic. Reportedly, some participants spent the better part of the day outside waiting in the registration line. Meanwhile, inside, NGO observers sang songs, strummed the guitar, and organized a “crime scene” with Sherlock Holmes inspecting a chalk drawing on the floor of Africa. With the number of registered participants far exceeding the capacity of the conference, security guards will begin restricting access tomorrow, with each NGO receiving only a limited number of slots.

Seawalls are Not Enough: Climate Change and U.S. Interests

by Andrew Guzman

For too many years American climate change debates were political contests in which scientific evidence took a back seat to political posturing, obfuscation, and ultimately, inaction. Today, the science demonstrating that our world is warming and that humans are a primary cause of this warming is unambiguous. Though there remain a few public voices willing to deny the evidence, the credibility of their objections fades with each new development and the ever-mounting evidence.

Now that the public discourse has accepted the reality of climate change, the discussions have turned to focus on possible responses to the problem and the costs of those responses. Even where there is consensus on the existence of climate change, there is often disagreement about what should be done. The most common objections to action point to the costs that would be involved. For example, critics of the Waxman-Markey cap-and-trade climate change bill have claimed that it would cost the average American household $1,870 per year. There is little evidence to support this figure, but it has entered the political discourse nonetheless. On the other side of the debate, proponents of the bill point to a Congressional Budget Office report suggesting that the bill will cost the average family less than one-tenth of that – just $160 per year.

This debate over the costs of action is critical, but it cannot guide policy by itself. We also have to understand the costs that climate change will impose. What will it cost the United States if the Earth warms?

Professor Jody Freeman and I investigated this question in our recent article, Climate Change and U.S. Interests, published in the Columbia Law Review. We sought to estimate the full cost of climate change on the United States. The article is in part a response to the view, advanced in some fora, that the United States can afford to be passive with respect to emissions reductions. The idea is that the U.S. will suffer very modest economic harms as a result of climate change – indeed, some suggest that the country may enjoy small economic gains – and so has little incentive to bear any costs to reduce global warming.

We dispute this conclusion, which emerges from “integrated assessment models” (IAMs) of the economy. We do not challenge the models themselves or the economists who use them, but we object to how the results of these economic studies have been used in policy debates. The translation of IAMs from academic research to policy-relevant evidence too often overlooks two main points. First, IAMs are systematically biased downward in their estimates because they omit a range of economic harms that will be felt as the earth warms. Second, the assumptions used in the IAMs are often forgotten when the results are considered in policy debates, and results are simplified in ways which aggravate the downward bias of estimates.

Limiting Climate Change: Who is going to pay?

by Richard Stewart & Benedict Kingsbury

Here in Copenhagen, agreeing on some principles of climate finance, at least in very basic form, is at last becoming a priority. Last week, after announcing EU money for a climate change fast start fund, German Chancellor Angela Merkel acknowledged that developing countries would only enter into a climate agreement if sufficient money was committed by developed countries: “This is the biggest headache to me.”

And last Thursday, billionaire George Soros proposed using IMF Special Drawing Rights to leverage over $100bn for mitigation and adaptation in developing countries, with the investments eventually to be recouped by the IMF. This has the attraction that the SDRs are already there – they do not require transfers from taxpayer funds. But this proposal for a fairly radical shift in what the IMF does has not attracted much attention at the COP.

All agree a final political declaration will depend on the developed countries putting some public money on the table. Where the developed governments are starting to make commitments is to the fast start fund, which will fund projects (clean adaptation, clean technology and avoided deforestation projects) immediately and through 2012, when the potential successor to Kyoto would begin. The EU has now pledged €7.2 billion over those three years, although a portion of this is existing promises or will be reallocated from aid budgets, rather than new funding. The US and others expect to provide similar funds too.

But while symbolically important (and potentially a stepping stone to further commitments), the amounts now being discussed by developed country governments are nowhere near what is likely needed to limit warming to 2°C, nor are they commitments that will last beyond 2012. The UN and other respected independent sources estimate that €55-80 billion in additional international financing is needed annually over the period 2012- 2020 to curb emissions in developing countries, and an additional €10-20 billion annually for adaptation, for a total of €65-100 billion annually.

Much of the needed finance—perhaps €50-70 billion annually—will have to come from public sources, including bilateral ODA, domestic emissions allowance auctions, World Bank and other multilateral programs, and international levies on marine and aviation sectors and perhaps a tax on international financial transactions.

Private finance would have to supply the balance: €15-30 billion annually. It will largely be generated through the international carbon markets, in which regulated entities in developed countries purchase emissions reduction credits from verified reducers in developing countries. Up to this point in the negotiations, developing countries had been very hesitant to include private finance in the funding mix. However, the AWG-LCA Chair’s most recent draft text includes recognition that private finance should play some role (and that part of the text is not in square brackets). This is a significant and important shift because AWG-LCA (Ad Hoc Working Group on Long-term Cooperative Action) is where most of the negotiating is happening right now.

There is very little detail yet in the negotiating texts on the institutions necessary to coordinate, deliver, and govern these funds, or on MRV arrangements for donors (which currently seem unlikely to be very robust). Some vital topics, such as finance leveraging, are not even on the table.

Leveraging—achieving more reductions per unit of finance than would be achieved through awarding one credit for every unit of emissions reduction (e.g. for every tonne or carbon equivalent)—is essential if the available funds are ever to be scaled up to the necessary levels of finance to adequately curb emissions without blocking low-carbon development.

Leveraging of public financing can take a number of forms: low-interest loan guarantees or concessionary debt in which loans for low-carbon growth are given to developing countries below commercial rates; developed country funds could be used as collateral to secure developing country loans; provision of investment insurance or export credit provided by domestic or international public agencies, to minimize risk for private investors in developing country mitigation projects; or arrangements to catalyze technology transfers, which may include domestic tax or fiscal incentives to developed country manufacturers/patent holders.

In the case of private funding, leveraging might take new forms. Two likely techniques are:

1. Intermediary carbon banks would purchase reductions in developing countries at prices approximating the marginal costs of producing them. The banks would then sell the reductions at the market price that credit offsets command in developed countries—quite often a large spread—with the difference used to purchase additional reductions for the benefit of the climate system, or development goals.

2. Credit Discounting would require, for example, that 1.25 offset credits have to be surrendered to offset 1 unit of domestic emissions by regulated sources. This mechanism is found in the Waxman-Markey bill that passed the U.S. House.

But as we said above leveraging options, including arrangements that use public and private funds to leverage each other, are not on the table for serious discussion in Copenhagen. Unfortunately, that discussion is dominated by the issue of the magnitude of financing, but some basic approaches to MRV and climate finance institutions are being negotiated. We will write tomorrow on institutions that might overcome the basic lack of trust most developing countries feel in the prospects that adequate finance will actually flow to their domestic mitigation projects or programs.

Blogging the Copenhagen Climate Talks and Climate Finance, More Generally

by Chris Borgen

As the UN Climate Change Conference in Copenhagen enters its crucial week, we will be joined by a few guests who will be blogging about the climate talks, sometimes from Copenhagen itself.

Dan Bodansky of the University of Georgia (and soon to be of Arizona State University) and the author of the book The Art and Craft of International Environmental Law has already sent us a post from Copenhagen (as well as this post and this post from the Barcelona run-up to Copenhagen). We look forward to his further observations.

We are also looking forward to contributions this week from Andrew Guzman of Berkeley Law, co-author (with Jody Freeman) of the recent article Sea Walls are Not Enough: Climate Change and U.S. Interests and author of the forthcoming book Climate Change and the Apocalypse (my kudos on the choice of title). readers may remember that we have previously hosted a book discussion of Andrew’s book How International Law Works.  We welcome him back. 

Finally, we are pleased to have five contributors from the new book Climate Finance: Regulatory Funding and Strategies for Climate Change and Global Development (NYU Press 2009).  The book can be downloaded from the International Climate Finance page of NYU’s Institute for International Law and Justice. The co-editors of the volume Benedict Kingsbury, Richard Stewart, and Bryce Rudyk will all be joining us, as will contributors Arunabha Ghosh and Nathaniel Keohane. I know that at least Benedict and Bryce are at Copenhagen, and I would not be surprised if some of their other colleagues are there as well. 

Benedict Kingsbury is Director of the Institute for International Law and Justice at NYU School of Law. He has written extensively on trade-environment disputes, the United Nations, and interstate arbitration and the proliferation of international tribunals.

Richard Stewart directs NYU’s Center on Environmental and Land Use Law and Global Law School Program. He has formerly served as Assistant Attorney General for Environment and Natural Resources, U.S. Department of Justice, and as Chairman of the Environmental Defense Fund.

Bryce Rudyk is Coordinator of the International Climate Finance Project and Research Fellow at the Center for Environmental and Land Use Law at NYU School of Law. His research focuses on financing climate change mitigation and adaptation.

Arunabha Ghosh is Oxford-Princeton Global Leaders Fellow at the Woodrow Wilson School of Public & International Affairs, Princeton; Associate at the Global Economic Governance Programme, Oxford (see this resource guide to climate change governance issues); and Faculty Associate at the Smith School of Enterprise and the Environment, Oxford. He previously worked as Policy Specialist at UNDP’s Human Development Report Office in New York, where he authored the 2006 HDR and co-authored the 2005 and 2004 editions.

Nathaniel Keohane is Director of Economic Policy and Analysis at the Environmental Defense Fund, and Adjunct Professor at NYU School of Law. He has published articles on environmental economics in numerous academic journals, and is the co-author of Markets and the Environment.

Their Climate Finance project provides some much-welcome “brass tacks” considerations on the financing and regulatory issues of climate change governance. Here’s the short description:

Preventing risks of severe damage from climate change not only requires deep cuts in developed country greenhouse gas emissions, but enormous amounts of public and private investment to limit emissions while promoting green growth in developing countries. While attention has focused on emissions limitations commitments and architectures, the crucial issue of what must be done to mobilize and govern the necessary financial resources has received too little consideration. In Climate Finance, a leading group of policy experts and scholars show how effective mitigation of climate change will depend on a complex mix of public funds, private investment though carbon markets, and structured incentives that leave room for developing country innovations. This requires sophisticated national and global regulation of cap-and-trade and offset markets, forest and energy policy, international development funding, international trade law, and coordinated tax policy.

Thirty-six targeted policy essays present a succinct overview of the emerging field of climate finance, defining the issues, setting the stakes, and making new and comprehensive proposals for financial, regulatory, and governance mechanisms that will enrich political and policy debate for many years to come. The complex challenges of climate ­finance will continue to demand fresh insights and creative approaches. The ideas in this volume mark out starting points for essential institutional and policy innovations.

Remember, you can download the book free of charge from here.

We at Opinio Juris are excited that such a distinguished and varied group of experts will be with us over the next week. We encourage our readers to weigh-in with questions and comments.

“Guilty Robots” in NYT Magazine Ideas 2009 Issue

by Kenneth Anderson

One of my favorite issues of the New York Times Magazine is its “year in ideas” issue, which comes annually in December.  Because OJ is a repository of things related to battlefield robotics and law and ethics, I wanted to flag for your attention the item by Dara Kerr, “Guilty Robots.”

[I]magine robots that obey injunctions like Immanuel Kant’s categorical imperative — acting rationally and with a sense of moral duty. This July, the roboticist Ronald Arkin of Georgia Tech finished a three-year project with the U.S. Army designing prototype software for autonomous ethical robots. He maintains that in limited situations, like countersniper operations or storming buildings, the software will actually allow robots to outperform humans from an ethical perspective.

“I believe these systems will have more information available to them than any human soldier could possibly process and manage at a given point in time and thus be able to make better informed decisions,” he says.

The software consists of what Arkin calls “ethical architecture,” which is based on international laws of war and rules of engagement.

The “guilty” part comes from a feature of Professor Arkin’s ethical architecture, in which certain parameters cause the robot to become more “worried” about the rising calculations of collateral damage and other such factors.

After considering several moral emotions like remorse, compassion and shame, Arkin decided to focus on modeling guilt because it can be used to condemn specific behavior and generate constructive change. While fighting, his robots assess battlefield damage and then use algorithms to calculate the appropriate level of guilt. If the damage includes noncombatant casualties or harm to civilian property, for instance, their guilt level increases. As the level grows, the robots may choose weapons with less risk of collateral damage or may refuse to fight altogether.

As I have said several times on this blog, and in various talks and presentations, I am agnostic as to whether at some point in the future, robots might prove to be ethically superior to humans in making decisions about firing weapons on the battlefield.  When I say agnostic, I mean genuinely agnostic – it seems to me an open question of where technology goes, and in, say, a hundred years, who can say?  For thing, I do fully imagine that roboticized medicine, surgery and operations, will very possibly have reached the point where it might well be presumptive malpractice for the human doctor to override the machine.  It is not impossible for me to imagine – far from it – a time in which it would be a presumptive war crime for the human soldier to override the ethical decisions of the machine.

But maybe not.  Although I am strongly in favor of the kinds of research programs that Professor Arkin is undertaking, I think the ethical and legal  issues, whether the categorical rules or the proportionality rules, of warfare involve questions that humans have not managed to answer at the conceptual level.  Proportionality and what it means when seeking to weigh up radically incommensurable goods – military necessity and harm to civilians, for example – to start with.  One reason I am excited by Professor Arkin’s attempts to perform these functions in machine terms, however, is that the detailed, step by step, project forces us to think through difficult conceptual issues regarding human ethics at the granular level that we might otherwise skip over with some quick assumptions.  Programming does not allow one to do that quite so easily.

And it is open to Professor Arkin to reply to the concern that humans don’t have a fully articulated framework, even at the basic conceptual level, for the ethics of warfare: “Well, in order to develop a machine, I don’t actually have to address those questions or solve those problems.  The robot doesn’t have to have more ethical answers than you humans – it just has to be able to do as well, even with the gaps and holes.”

Many OJ readers will by now be familiar with Peter W. Singer’s widely noticed Wired for War.  But I would suggest following it up with Professor Arkin’s own new book, Governing Lethal Behavior in Autonomous Robots, particularly now that Amazon has dropped the price from $60 to $40.

I guess I should also add that this discussion is about battlefield robotics in the sense of “autonomous” firing systems – not the current robotics question of human controlled, but remote platform unmanned combat vehicles, Predators and drones.  I will try to put up a post soon noting several new papers on the targeted killing and UCV-drone issues in international law, including new papers on SSRN by Mary Ellen O’Connell, Jordan Paust, and others – I’ll try to do a roundup of recent papers on the subject (once past grading my corporate finance and IBT finals, that is).

Council on Foreign Relations Report on R2P

by Kenneth Anderson

President Obama’s Nobel Prize speech yesterday made reference to the moral authority, under the ethics of the just war, for armed humanitarian intervention in some situations.  It is a topic that has been debated and discussed as a matter of international law for, well, a long time, but which gained particular urgency following on Bosnia, Rwanda, and Kosovo in the 1990s.  It continues to be debated and argued as a matter of law, morality, and policy.  The Council on Foreign Relations has just issued a new report, Intervention to Stop Genocide and Mass Atrocities, authored by Columbia law professor and former Bush administration official Matthew Waxman, looking for ways to move the discussion forward.  It is a terrific report, coherently organized and thought-out as to substance, I strongly recommend it to anyone thinking through mass atrocities and “R2P.”

Professor Waxman’s report starts from the premise that the US favors robust practical measures to stop and prevent genocide and mass atrocities.  He then turns to the legal regimes in international law and asks what prevents robust responses from taking place:

A[n] important part of this debate concerns the international legal system governing the use of force in situations of actual or potential atrocities. In this Council Special Report, Matthew C. Waxman asks whether this legal regime is effective in preventing and stopping such crimes. The report notes that international legal practices constrain swift action and require extensive consultation, especially in the United Nations Security Council, before particular steps can be taken. Waxman, though, argues that the system has certain benefits: it can confer legitimacy and help actors coordinate both military and nonmilitary efforts to prevent or stop atrocities. He also contends that different arrangements of the kind some have proposed would be unlikely to prove more effective.

He therefore opposes wholesale reforms but recommends more modest steps the United States could take to improve the current legal regime. These measures include expressing strong but nuanced support for the responsibility to protect and working with other permanent members of the UN Security Council to discourage the use of vetoes in clear cases of mass atrocities. But the report also argues that the United States must be prepared to act alone or with others in urgent cases without Security Council approval.

I would add, as my own view, however, that R2P gets harder and harder to pull off in a genuinely multipolar world; a multipolar world, as the ever-astute David Rieff has noted, is a competitive, not cooperative, one.  In the jockeying for position around many things ranging from commercial advantage to energy to markets to regional security to lots more besides, many more actors can find many more reasons, and many more reasons not obviously related to the atrocities at hand and many reasons not even of any obvious importance, for preventing R2P from taking place.

The intervention that did take place – Kosovo – depended, not upon the United Nations or the collective security of international organizations, but upon the rough and ready security hegemony of the United States.  This was one of the crucial tenets of President Obama’s Nobel speech – an acknowledgment of the US as the provider since WWII of the basics of global security as a global public good.  The interventions that did not take place, Rwanda and Bosnia (at least not until late in the day), did not because they depended upon the collective security mechanisms of the UN.  What the international system did instead was punt, so to speak, to the future and promise an emerging system of international criminal law that would address these things post hoc (I am skeptical about the post hoc move, unsurprisingly, and say so here in the EJIL).  The US acts (as President Obama recognized), not merely as the biggest player (still) in the international system of law and organizations, but as a parallel player, acting from outside the structure of liberal internationalism, in effect offering an extra-UN-system guarantee to the system.  That’s one reason why the UN has not simply imploded as a system of collective security; words are there, but security is underwritten by an actor outside of the system and its ineradicable collective action failures.

However, despite the admirable activities of legal academics and policy experts to try to put flesh on the bones of R2P, it seems to me that the concept has been in retreat.  At the broadest level, this is on account of the rise of multipolarity – or at least its perception – and the resurgence of the “electoral authoritarians,” particularly Putin’s Russia, which saw Kosovo as something of a watershed (Macedonia a little bit too, for that matter, remember it?), and all in the wrong direction.  After all, the Kosovo war was not put to the Security Council by the NATO coalition, for the reason that Russia, and perhaps China, would have vetoed it.  And, on the other hand, R2P has already been invoked by Russia as a ground for its adventures in Georgia; in bad faith, of course, but even bad faith invocations can undermine the concept in real life.

This palpable dislike of R2P found expression in the language of the 2005 Final Outcome Document of the UN General Assembly reform conference in 2005 – under the ever-malign influence of the General Assembly, the final language mentioned R2P, but cabined it under the authorization of the Security Council.  Under the terms of the 2005 document, the Kosovo war would have had to go to the Security Council, with predictable results.  Note, too, that this runs directly against President Obama’s assertion yesterday that there would be times when the US, sometimes alone and sometimes with friends, would act – outside of the UN system.  The world as it is, as it were.

Dan Bodansky Letter from Copenhagen

by Daniel Bodansky

[As noted earlier, Professor Dan Bodansky is continuing his dispatches on the climate change talks.  He is Copenhagen this week and next, and sends us this initial letter from Copenhagen.  OJ will be providing additional commentary on the climate change talks — from the conference, and from other academic commentators — over the next week. Dan’s letter is being cross-posted at the Smith School of Enterprise and Environment at Oxford.]

Under grey skies, the Copenhagen Climate Conference began this week in a sprawling complex at the edge of the city. Whether anything will actually happen here to address climate change remains an open question. But the conference is definitely a happening. Reportedly, more than 40,000 people have registered and the conference has dramatically more energy than the lead-up meetings (although that is an admittedly low standard of comparison). Indeed, my sense is that it’s on a bigger scale than any environmental meeting since Rio. And the energy will only build next week, with the arrival of more than 100 heads of state.

In theory, the outlook here should look bright, since the core substantive elements of the “deal” are already on the table. The major emitters have put forward their provisional national emission targets: 20-30% reductions from 1990 levels for the EU, in the range of 17% reductions from 2005 levels for the US, a 40-45% improvement in carbon intensity for China, and a 20-25 % intensity target for India. Although these numbers fall short of putting the world on a pathway towards the goal of limiting climate change to 2 degrees (indeed, there is disagreement whether the Chinese number is any improvement on BAU), I think few realistically expect them to be tightened during the course of the conference (although the EU has criticized both the US and EU numbers as too weak, so I may easily be proved wrong). Similarly, the figure of $10 billion annually in near-term (“fast start”) financial assistance, which the US and EU have endorsed, may not meet the financial needs of developing countries, but I don’t think it will be the subject of further negotiations.

With these substantive elements in place, one might expect a deal to be easy, but the reality is far different. Not only do the various negotiating texts remain a mess, there is still no political agreement on the “architectural” aspects of the regime, including the legal form of the ultimate outcome. The divergence of views is reflected in the two texts that are informally circulating at the meeting: a text that the Danish presidency put forward last month at a pre-COP ministerial meeting, which has drawn significant fire from developing countries; and the BASIC text developed by Brazil, South Africa, India and China (the so-called BASIC group). And the opening days of the session revealed the growing rifts within the G-77 (the developing country negotiating group) between those who favor a weaker and stronger outcome.

The following is a brief summary of the key issues in the negotiations:

Obama’s Hawkish Nobel Lecture

by Roger Alford

Obama’s Nobel Lecture is a great speech. He spoke strongly in favor of international institutions and even more so international law.

The great surprise of the speech is its unstinting support for just war theory. There is no doubt that Obama’s Nobel Lecture is the most hawkish one in the history of the Nobel Peace Prize. Only Yitzhak Rabin’s 1994 Nobel Lecture comes close. The early laureates were routinely pacifists. Most laureates are not statesmen and enjoy the luxury of ideals divorced from the necessity of hard choice. The laureates who were statesmen often failed in their Nobel lectures to defend war in appropriate circumstances. To be sure, the Nobel Committee has recognized the legitimacy of force in the past, with the prizes to Lester Pearson in 1957 and U.N. Peacekeeping Forces in 1988 the most obvious examples. But as it turns out, they may have gotten more than they bargained for with Obama’s eloquent defense of just war theory:

Der Spiegel on the Possibility of a Greek Sovereign Bankruptcy

by Kenneth Anderson

Der Spiegel has an excellent story on the possibility that a Eurozone country might default on its sovereign debt, with economic, political, and legal consequences that could be anything from serious to dire.  The country is Greece …  what, if any, are the questions for public international law, or public transnational law, or the constitutional order of the EU?  Does a Greek bankruptcy raise any issues for the political order of the EU?  Or can currency arrangements be kept separate from the EU, in the way that, for example, the UK stays out of currency union?

A Climate Committment That’s Not A Treaty?

by Duncan Hollis

The Guardian has a leaked copy of what it’s calling “the Danish text” (see it here).  Apparently, this draft was developed by the Danes along with other developed countries including the United States and the United Kingdom in the hope that it might become the basis for whatever instrument emerges from Copenhagen.  As widely expected, the instrument is framed as a “political agreement” rather than a treaty.  Hostility to the instrument has not centered (so far), however, on its form, but rather (a) on its reliance on the World Bank in lieu of existing UN fora for overseeing the new regime as well as (b) its imposition of new commitments on emissions for developing countries that they were apparently not expecting. 

The Guardian reports that the leak of the Danish text has thrown the talks into disarray, and makes it sound like the talks are already in danger of failing just as they’ve begun.  My own sense is that we’re only at the beginning of a two week process, and I’d expect that there’s still time to get the train back on track toward some consensus on a political commitment.  That said, a leak like this will certainly require a fair bit of posturing on all sides before negotiators can get back to that goal.  Meanwhile, we’re hoping to have a number of guest bloggers weigh in in the days ahead on Copenhagen, so keep an eye here for future updates as they arise.

Hat Tip:  Foreign Policy’s Passport Blog

A Senior Job Opening in International Law

by Duncan Hollis

I’m not usually in the habit of posting on job openings, but I thought this one might warrant wider exposure and expect it will be of interest to some of our more experienced readers (particularly those who’ve always dreamed of living in Vienna).  The IAEA is looking for a new Director for its Office of Legal Affairs.  Here’s how the IAEA describes what you’d do if hired:

  • Provide direction for and lead a wide range of multidisciplinary legal matters relating to the interpretation and application of international, public, private and administrative law (including: legal status, privileges and immunities; legal relationship with IAEA Member States, host governments, and authorities; commercial and private law matters; and IAEA relationship with employees).
  • Prepare and/or negotiate legal instruments and contractual arrangements in accordance with the IAEA’s statutory functions and provide advice on questions of interpretation of such instruments and arrangements.
  • Promote the development and application of nuclear law through international forums and online content.
  • Support the elaboration of international conventions, regulations or recommendations within the purview of the IAEA’s statutory objectives and activities, and provide advice on questions of interpretation and implementation of such instruments.

Cool stuff.  Qualified applicants need a fair bit of experience, however — 15 years.  Also, in a move that may serve as a barrier to entry for some (but certainly not all) U.S. applicants, a knowledge of another IAEA language (Arabic, Chinese, French, Russian or Spanish) appears likely to factor into any hiring decision.  Still interested?  The deadline for applications is January 6, 2010.

Is the U.S. Public Both “Realist” and “Uninformed?”

by Peggy McGuinness

Dan Drezner’s take at Foreign Policy on the latest Pew Research Poll on U.S. foreign policy attitudes uses a more provocative term than “uninformed,” but the point is the same.  Can the public be “realist” in its attitudes to the world when those attitudes are based on factual assumptions that don’t exactly align with reality? Lots of interesting comments over at Drezner’s post.

Also at FP, check out the survey of their “top 100 thinkers” for a different take on world events than the Pew “wisdom of the crowd” approach.

Dr. Karadzic Challenges the Registry’s Procedure for Appointing Stand-By Counsel

by Kevin Jon Heller

B. Don Taylor, a former legal officer at the ICTY and a good friend, has argued in the comments to a recent post that although Dr. Karadzic’s criticisms of the procedure the Registry used to appoint Harvey may well have merit, Dr. Karadzic’s request for certification to appeal the Rule 44 issue did not adequately raise the issue.  I disagree with Don, but I think reasonable minds can disagree; it probably would have been better if the motion — written, of course, during the period in which the defence team was not receiving funding from the Registry — had specifically explained why the Trial Chamber’s failure satisfied the interlocutory-appeal requirements of Rule 73(B).

As Don speculated in his comment, the request for certification was written and filed before the Registry appointed Harvey from its hand-selected list of five barristers.  Dr. Karadzic has now filed a motion in the Trial Chamber challenging the procedure the Registry used to select Harvey. That procedure was deficient in at least three ways…

Garzon Goes After Another Pinochet

by Gregory Gordon

[This is a guest post by Professor Greg Gordon of the University of North Dakota.  Professor Gordon is the Director of the UND Center for Human Rights and Genocide Studies, an expert on international criminal law and a past guest blogger at Opinio Juris.]

Earlier this week, Spanish National Court Judge Balthazar Garzon initiated money laundering proceedings against the widow of deceased Chilean dictator Augusto Pinochet, as well as Pinochet’s former lawyer and two of his bankers. In connection with the probe, Garzon has ordered the suspects to post a $77 million bond, indicating the bond is to “cover whatever financial liabilities might arise” in his probe. The four suspects, along with Banco de Chile, have ten days to pay the bond. If they fail to pay, Garzon has threatened to seize from their bank accounts the amount of the bond, plus an extra third – a total of approximately $103 million. The order, which did not reveal where the accounts are held, is meant to extract payment to “cover whatever financial liabilities might arise” in Garzon’s probe.

Judge Garzon’s actions raise a slew of interesting legal questions, both substantive and procedural, as well as policy questions about the appropriate scope of universal jurisdiction. First, and most fundamentally, under what authority is Garzon proceeding?  Second, should money laundering be considered a “serious” violation of international law?

ICJ Begins Advisory Proceedings on Kosovo

by Chris Borgen

I will write on this at greater length in a couple of days after a few of the key parties have made their arguments. For now, I just want to note that the oral proceeding transcripts will be available here. In the Tuesday morning session (which is all that has been posted at the time of this writing), Serbia set out its argument.

Without having gone in depth into Serbia’s argument, I do note that they seem to be staking out a claim that the declaration of independence made by Kosovo’s Parliament is itself illegal under international law, violating both the territorial integrity of Serbia and falling afoul of UN Security Council Resolution 1244 (which I have analyzed here). Given that most international lawyers tend to argue that secession itself is neither legal nor illegal under international law (or, put another way, that international law is silent as to the legality of secession), I am interested in both reading the oral statements at greater length, as well as the written submissions to see how Serbia constructed this argument.

More to come…

Colonel Sanders at the United Nations

by Roger Alford

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With the kerfuffle over the White House gate-crashing gaining all the attention, another flap over gate crashing is flying below the radar. It appears that Colonel Sanders of Kentucky Fried Chicken fame returned from the dead to meet with Ali Treki, President of the United Nations General Assembly. As reported here:

A spokeswoman for Ban Ki-moon, the UN secretary-general, yesterday said that an investigation had been launched into the security breach, which was dreamed up by KFC as a promotional stunt. “It should not have happened – that I will stress, and very strongly,” Michele Montas told Canwest News Service, the Canadian news agency. “There was some lapse in security and the individual in question was, on the initiative of one security guard, taken into the UN.”

The United States introduced a resolution before the Security Council to sanction KFC for action that threatened international peace and security, but the resolution was blocked by the French ambassador Gérard Araud.

A KFC spokesman stated that the company had no idea how Colonel Sanders was able to return from the dead or why he chose to visit the United Nations, given that everybody who was anybody was at the Indian State Dinner in Washington.

Colonel Sanders insisted that he did not crash the United Nations. “I was invited, not crashed. There isn’t anyone that would have the audacity to return from the dead and try to crash the United Nations. I think the public is going to be extremely surprised when the details come out.”

The Conscience of a Conservative

by Kevin Jon Heller

Charles Johnson, founder of the conservative blog Little Green Footballs, has announced that he has parted ways with the right-wing in the US.  His list of ten reasons is remarkable for its honesty and its perspicacity:

1. Support for fascists, both in America (see: Pat Buchanan, Robert Stacy McCain, etc.) and in Europe (see: Vlaams Belang, BNP, SIOE, Pat Buchanan, etc.)

2. Support for bigotry, hatred, and white supremacism (see: Pat Buchanan, Ann Coulter, Robert Stacy McCain, Lew Rockwell, etc.)

3. Support for throwing women back into the Dark Ages, and general religious fanaticism (see: Operation Rescue, anti-abortion groups, James Dobson, Pat Robertson, Tony Perkins, the entire religious right, etc.)

4. Support for anti-science bad craziness (see: creationism, climate change denialism, Sarah Palin, Michele Bachmann, James Inhofe, etc.)

5. Support for homophobic bigotry (see: Sarah Palin, Dobson, the entire religious right, etc.)

6. Support for anti-government lunacy (see: tea parties, militias, Fox News, Glenn Beck, etc.)

7. Support for conspiracy theories and hate speech (see: Alex Jones, Rush Limbaugh, Glenn Beck, Birthers, creationists, climate deniers, etc.)

8. A right-wing blogosphere that is almost universally dominated by raging hate speech (see: Hot Air, Free Republic, Ace of Spades, etc.)

9. Anti-Islamic bigotry that goes far beyond simply criticizing radical Islam, into support for fascism, violence, and genocide (see: Pamela Geller, Robert Spencer, etc.)

10. Hatred for President Obama that goes far beyond simply criticizing his policies, into racism, hate speech, and bizarre conspiracy theories (see: witch doctor pictures, tea parties, Birthers, Michelle Malkin, Fox News, World Net Daily, Newsmax, and every other right wing source)

And much, much more. The American right wing has gone off the rails, into the bushes, and off the cliff.

I won’t be going over the cliff with them.

My politics are pretty obviously left, but I have always had genuine respect for traditional conservatives and libertarians — particularly the latter.  It’s sad that people like Johnson are such a dying breed.

ADDENDUM: Proving his point, various right-wing bloggers “respond” to Johnson here, here, here, here, here