October 2011

Kevin Jon Heller and the Historical Legacy of the U.S. Nuremberg Military Tribunals (NMT)

Although the twelve U.S. Nuremberg trials judged seven times as many defendants as the International Military Tribunal (IMT) and addressed a broader spectrum of international criminal law issues, including the first genocide prosecutions and the establishment of important principles of medical ethics, they have wallowed in comparative historical obscurity. The absence of meaningful coverage is ironic given, as Kevin...

Healthier and Wealthier: Seven Billion and Counting

Today is an historic day in world population statistics, marking the day that planet reaches seven billion inhabitants. What is amazing is, despite the phenomenal growth in population, the citizens of the world are becoming healthier and wealthier every year. Gapminder has an incredibly interesting timeline that shows the progression of life expectancy (y axis) and income per...

German Constitutional Court Issues Temporary Injunction on Bailout

Der Spiegel Online reports that in the wake of the eurozone debt deal reached by European leaders last week, the German Constitutional Court has issued a temporary injunction against the Merkel government implementing its obligations until the court has ruled on whether the nature of the parliamentary action is lawful: Germany's Federal Constitutional Court on Friday expressed doubts about the legality of...

A Cybersecurity Treaty? Adam Segal and Matthew Waxman Think Not

Adam Segal and Matthew Waxman (among other things, both fellows at the Council on Foreign Relations) write at CNN.com on why the global cybersecurity threat leads many to believe that the only way to address this transnational issue is through a treaty — and why such a treaty is a pipedream.

The hacker – a government, a lone individual, a non-state group – stealing valuable intellectual property or exploring infrastructure control systems could be sitting in Romania, China, or Nigeria, and the assault could transit networks across several continents. Calls are therefore growing for a global treaty to help protect against cyber threats. As a step in that direction, the British government is convening next week the London Conference on Cyberspace to promote new norms of cybersecurity and the free flow of information via digital networks. International diplomacy like this among states and private stakeholders is important and will bring needed attention to these issues. But the London summit is also likely to expose major fault lines, not consensus, on the hardest and most significant problems. The idea of ultimately negotiating a worldwide, comprehensive cybersecurity treaty is a pipe dream. Different interests among powerful states – stemming from different strategic priorities, internal politics, public-private relationships and vulnerabilities – will continue to pull them apart on how cyberspace should be used, regulated, and secured. With the United States and European democracies at one end and China and Russia at another, states disagree sharply over such issues as whether international laws of war and self-defense should apply to cyber attacks, the right to block information from citizens, and the roles that private or quasi-private actors should play in Internet governance. Many emerging Internet powers and developing states lie between these poles, while others are choosing sides.

Segal and Waxman point out not only ways in which a treaty regime is likely an instance of overreaching that, were anyone actually to rely on it, is likely to fail.  They go on to present a positive agenda of steps that states can take in order to develop what amount to state practices aimed at consolidating looser norms of state behavior and best practices of states, without reaching to a treaty regime.

Richard Fallon on Law Professor Amicus Briefs

Harvard Law School's Richard Fallon has a new short, reflective essay expressing important concerns about the many amicus briefs that we law professors author, submit, and sign.  "Scholars Briefs and the Vocation of a Law Professor." (Via Volokh Conspiracy, and via Prawfs; the comment threads have some interesting points.) From the introduction:

With scholars’ briefs having the potential to influence the outcome of sometimes high-stakes litigation, requests to prepare them often come either from a party or from a firm or organization whose interests align with those of a party. Many law professors seem to like to draft, or at least collaborate with law firms in drafting, scholars’ briefs. For the professors who are asked merely to sign a scholars’ brief, participation may be even harder to resist. Dangled before them, with little or no work required, is the possibility of having an impact on the development of the law. As long as the brief supports the right side, it is hard for a professor who wants to influence the law's trajectory-as nearly all of us do-to say no. But law professors often should say no, or at least we should say no much more frequently than many of us now do. And when we say yes-as we should sometimes-we should insist that scholars' briefs reflect higher norms of scholarly integrity than many such briefs now satisfy. Or so I shall argue in this essay. In so arguing, I hope to spur an overdue discussion.

Ruti Teitel’s ‘Humanity’s Law’

This excellent book is remarkable for its wide and deep use of work from international relations literature, bridging the disciplines of international law and international relations as few have done previously.  There is a significant body of writing in international law where the ideas from particular theoretical traditions in broader scholarship, sometimes the ideas of individual scholars, are brought to...