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Chris Borgen

Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

by Chris Borgen

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from exiting municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are  a distinct people with its own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in (more…)

Opinio Juris and the Trump Presidency

by Chris Borgen

A couple of weeks ago a group of Opinio Juris bloggers held a round-table discussion at St. John’s University Law School about the international law and policy issues facing the next American President. In front of a full room, we considered issues ranging from relations with China and Russia, to the future of national security policy, human rights, international trade agreements and the UN.  We fielded questions from the audience, went past our scheduled closing time, and still had not answered all the questions in the room. It was clear that there is a need and a desire for intelligent discussion on these and other issues of international law and U.S. policy. There were, and are, significant questions of law and policy before the American public.

Now we know who the next President will be. Sustained and informed commentary about international law and the United States’ role in the world has never been more relevant.  We founded Opinio Juris as a forum for engaged and intelligent discussion on a broad range of international legal issues.  We have fostered a dialogue with voices from varying political, legal, and national perspectives. Among the hundreds (if not thousands) of issues we have covered, we have had commentary by sitting Department of State Legal Advisers on Bush Administration policies in the War on Terror and also concerning the U.S. operation against Osama Bin Laden during  the Obama Administration, as well as expert observations from the negotiations in Paris leading to the climate change agreement (see, for example, 1 and 2), examinations of the development of international criminal law, analyses of the  work of international courts and tribunals, emerging technologies and international law, and conversations about U.S. policy on the conflict in Syria. For the last eleven years we have tried to reflect upon the breadth and depth of international law and policy.

As the U.S. begins its transition into what will be the Trump Administration, we will continue to provide commentary that is informed by expertise in international law and is engaged with the policy debates of our time. A brief scan of the list of initiatives Donald Trump listed in October as the priorities for his first 100 days in office is full of international legal implications. He stated that on his first day in office, among other things:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator

* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately…

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America’s water and environmental infrastructure

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

* THIRD, cancel all federal funding to Sanctuary Cities

* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

This is only part of the list. For example, other statements from President-elect Trump or his surrogates have concerned whether the new administration would honor U.S. obligations under the Geneva Conventions and international humanitarian law, the future of NATO, and commitments to address climate change, to take three examples.  As the transition proceeds and President-elect Trump’s actual agenda takes shape, we will assess and address the international legal issues implicated by his proposals and stances. More generally, we will continue to thoughtfully consider the expansive international legal and policy issues facing the U.S. We hope to add to an informed public discourse.

We started this website as a forum for debate and discussion about international law and policy. Almost 10,000 posts later, this conversation has never been more important and we look forward to hearing what you have to say in the days and weeks to come.

Addressing the Urban Future

by Chris Borgen

Urbanization is our present and it is our future. Between the recently completed UN Habitat III conference in Quito, Ecuador, and Iraqi Special Operations entering Mosul, starting what may be a complex urban battle, we face constant reminders that  much of the world’s population now lives in cities. How we protect rights, foster development, interact with the environment, organize politically, and fight wars is increasingly an urban story.

Consider the bleak picture of megacities and the future of combat in this leaked Pentagon video (at the link and also embedded above). Some key take-aways from the video:

  • By 2030 60% of world’s population will be in cities. Most of the urban growth will be in the developing world.
  • Illicit networks will fill the gaps left by overextended and undercapitalized governments.
  • Growth will magnify the increasing economic separation between rich and poor, even thought they may be in close proximity. Uneven growth means that slums and shantytowns will rapidly expand alongside ever increasing levels of prosperity.
  • Moreover, religious and ethnic tensions will be a defining element of these urban environments
  • Megacities are complex systems where people and structures are compressed together in ways that defy both our understanding of city planning and military doctrines.
  • Living habitats will extend from the high-rise to the ground level cottage to subterranean labyrinths, each defined by its own social code and rule of law.
  • Social structures will also be stressed. Criminal networks will offer opportunity for the growing class of unemployed  and will be part of the nervous system of non-nation state, unaligned, individuals and organizations that live and work in the shadow of national rule.
  • There will be increasing complexity of human targeting as proportionally smaller number of adversaries mix with an increasingly large population of citizens.
  • The interactions of governmental failure, illicit economies,  economic growth and spreading poverty, informal networks, environmental degradation, and other factors leads to an environment of convergence hidden within the enormous scale and complexity of megacities, which become the source of adversaries and hybrid threats.
  • Classic military strategy counsels either (a) avoiding the cities or establishing a cordon to wait out the adversary  or (b) draining the swamp of non-combatants and then engaging the adversary in high-intensity conflict. But megacities are too large to isolate or cordon in their entirety.  The U.S. military will need to operate within the urban environment and current counterinsurgency  doctrine is  inadequate to address the sheer scale of megacities
  • “This is the world of our future. It is one we are not prepared to effectively operate within and it is unavoidable.”

According to FoxtrotAlpha, this video was produced for a course at the Joint Special Operations University on “Advanced Special Operations Combating Terrorism,” it is focused on urbanization from the perspective of military planning. A 2010 issue of the International Committee of the Red Cross’s journal was devoted to humanitarian law and conflict in built-up urban areas. The ICRC also had recommendations for the UN’s Habitat III conference that just ended.

The topics covered, though, are very much the province of law and lawyers, including the needs of the urban poor, the operations of criminal networks, environmental degradation and climate change, the law of armed conflict and targeting in built-up areas, informal rulemaking in communities (“order without law”), informal markets and economies,  and the role of non-state actors, to name only some of the topics that crop up. While this video is (understandably) focused on the implications on combat operations, what I also see is the need for sustained  engagement in the protection of human rights, the distribution of public goods, the fostering of inter-communal dispute resolution, and the spurring of bottom-up economic development in megacities.

The video emphasizes that the future is urban. But, as the writer William Gibson has said, “The future is already here; it’s just not very evenly distributed.”

 

Opinio Juris Live: The New American President and Crises in Global Order

by Chris Borgen

This Wednesday five of us from Opinio Juris will convene at St. John’s Law School for a roundtable discussion on The New American President and Crises in Global Order.

The program is sponsored by St. John’s Center for International and Comparative Law (which I co-direct with Peggy), together with the American Branch of the International Law Association and the New York State Bar Association, International Section Committee on Public International Law.

Julian, Peggy, Kristen, Deborah and I will have our hands full. Between Syria, Brexit, the Trans-Pacific Partnership, Crimea, Libya, allegations of Russian hacking, the global migration crisis and tensions in the South China Sea, among other topics, we will have no shortage of interesting and timely issues for our discussion. And we will open things up for comments and questions from the audience.

The discussion will be at 4:30 pm on Wednesday, October 26th.  I’ll post a summary afterwards.

International Law Weekend 2016

by Chris Borgen

International Law Weekend, the annual conference of the American Branch of the International Law Association is fast approaching. See the following notice from ABILA:

International Law Weekend 2016

Registration is now open for International Law Weekend 2016.

International Law Weekend 2016 – the premiere international law event of the Fall season – will be held October 27-29, 2016, in New York City.  The Opening Panel will take place on Thursday evening at the New York City Bar Association.  The Friday and Saturday sessions will be held at Fordham Law School.

You can register for the conference here: http://www.ila-americanbranch.org

The unifying theme for ILW 2016 is International Law 5.0.

The world is changing at an accelerating rate. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

ILW 2016 will explore these issues through a collection of engaging and provocative panels. A broad array of both public international law and private international law topics will be offered.

We look forward to seeing you at ILW 2016.

By the way, as a Co-rapporteur for the ILA’s Committee on Recognition/Non-Recognition in International Law, I will be on the panel Recognition and Non-Recognition of States and Governments: Current Issues in U.S. Practice on Friday, October 28 at 4:45 pm, along with my Opinio Juris colleague Peggy McGuinness and Brad Roth, both of whom are committee members, and Wladyslaw Czaplinski, the committee’s chairperson. Here’s the panel description:

For over five years the International Law Association’s Committee on Recognition and Non-Recognition has studied how states do or do not recognize other regimes as states and governments. This panel will bring together members from the ILA Committee to discuss the findings of their reports, with a particular focus on emerging issues in U.S. practice, including responses to secessions and unilateral declarations of independence after Kosovo; the problem of two or more regimes claiming to be the government of a single state, and the U.S. domestic effects of non-recognition.
I hope to see you there!

I Sing of MAARS and a Robot

by Chris Borgen

Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:

Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.

One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”

However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:

Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.

However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:

Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…

It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.

But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.

.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would  not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?

This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.

For another recent post on robots and regulations, see my post from earlier this summer.

Call for Submissions: International Law Weekend New Scholars and Practitioners Panel

by Chris Borgen

The American Branch of the International Law Association has sent us the following call for submissions for an “Emerging Voices Panel” that they have added to this October’s International Law Weekend. (Not to be confused with Opinio Juris‘ Fourth Annual Emerging Voices Symposium, which will be starting later this month).

ILW is an excellent conference and I am sure this will be a great addition:

International Law Weekend 2016: International Law 5.0

Call for Proposals for Emerging Voices Panel

Introduction

International Law Weekend 2016 (ILW 2016) calls on scholars and practitioners to address the accelerating nature of change in international law. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

Emerging Voices Submissions

ABILA invites the submission of abstracts from emerging scholars and practitioners in the field of international law.  We will select several abstracts for presentation at ILW 2016 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less. Applicants should be ABILA members at the time of the conference.  (To join ABILA, please visit: http://www.ila-americanbranch.org/Membership.aspx.)

 Submission Guidelines

Applicants must submit: (1) a 500-700 word abstract of their paper; (2) a cover letter describing their professional development; and (3) a curriculum vitae. The submission deadline is July 31, 2016. Submissions should be sent to conferences [at] ilsa [dot] org with the subject line “Emerging Voices – ILW 2016.” Questions may also be submitted to: conferences [at] ilsa [dot] org.

Submissions will be competitively selected in a peer review process.  Applicants will be notified by August 31, 2016.

ILW 2016 is scheduled for October 27-29, 2016 in New York City and will be held at Fordham Law School. Accepted applicants will be invited to present their papers at the Emerging Voices panel, which will be chaired by a senior scholar or practitioner. Accepted applicants will be required to pay for their own travel and lodging. However, their registration fees for ILW 2016 will be waived.

The NY Times on Bitcoins and China

by Chris Borgen

William Gibson, repurposing a Gertrude Stein quip, said about cyberspace “there’s no there, there” capturing the ethos of the internet as a place beyond the physical world of borders and jurisdiction.  Bitcoin melded cryptography and networked processing to attempt to make a currency that was not based in or controlled by any state.

But the internet is based on servers and fiber-optic cable and telecom switching stations that are firmly rooted in the physical world.  The cloud is made out of metal and plastic and glass. And as for Bitcoin, there increasingly is a there, there. And “there” is China. (For a quick background on Bitcoin, see this video, which explains how Bitcoin builds a payment system that replaces trust and personal allegiance with “mathematical confidence” or  this article.)

The New York Times reports how Chinese companies have come to dominate the production of Bitcoins:

In its early conception, Bitcoin was to exist beyond the control of any single government or country. It would be based everywhere and nowhere.

Yet despite the talk of a borderless currency, a handful of Chinese companies have effectively assumed majority control of the Bitcoin network. They have done so through canny investments and vast farms of computer servers dispersed around the country. The American delegation flew to Beijing because that was where much of the Bitcoin power was concentrated…

…But China’s clout is raising worries about Bitcoin’s independence and decentralization, which was supposed to give the technology freedom from the sort of government crackdowns and interventions that are commonplace in the Chinese financial world.

“The concentration in a single jurisdiction does not bode well,” said Emin Gun Sirer, a professor at Cornell and a Bitcoin researcher. “We need to pay attention to these things if we want decentralization to be a meaningful thing.”

What follows is a story considering the possible factors that contributed to Bitcoin’s popularity in China (including attempts to avoid government financial regulators and the popularity of online gambling) which, in turn, incentivized large investments in Bitcoin businesses, leading to the situation where “over 70 percent of the transactions on the Bitcoin network were going through just four Chinese companies…”

And, through it all, there is the question as to whether these and other Chinese companies even want to exercise leadership over Bitcoin at all. There is an interesting question of the psychology of power. The frame of the NY Times story is a meeting that took place in China between US and Chinese corporate leaders. The Americans flew to China because, as the Times put it, “that was where much of the Bitcoin power was concentrated.” They tried to persuade Chinese leadership to make certain changes to Bitcoin but were unable to do so. They also expressed frustration at the reluctance of the Chinese companies to exercise leadership in the industry. But then consider this description by one of the Chinese CEO of the same meeting:

“It was almost like imperialistic Westerners coming to China and telling us what to do… There has been a history on this. The Chinese people have long memories.”

Same room; completely different views of the dynamics of the meeting.

So, before we deploy too much post-modern, post-Westphalian, post-everything analysis to cryptocurrencies like Bitcoin or to the internet more generally, perhaps we need to  give jurisdiction, territory, memory, and psychology a second look. There is a there, there.

Oh Britain, Where Art Thou? (The View from the EU’s Eastern Neighbors)

by Chris Borgen

As the news of the Brexit vote sinks in, commentators are considering the various longer-term effects. I want to highlight the how this may look to the EU’s neighbors to the east, especially countries such as Ukraine, Moldova, and Georgia that have recently signed Association Agreements with the EU. Ukraine and Moldova, in particular, have electorates that are divided over whether to integrate more closely with the EU or with Russia’s nascent Eurasian Economic Union.  The debate over EU integration sparked Ukraine’s Maidan demonstrations and the subsequent separatist conflict.  All of these countries faced significant pressure from Russia to reject association with the EU. These countries became effectively a borderland between two systems, those of the EU and of Russia. And Russia, in particular, has treated this as a zero-sum struggle over the futures of these countries that had once been part of the USSR. So what happens in the EU is of critical concern to its neighbors to the east.

And what are the EU’s neighbors seeing today? There are already calls by some for exit referenda in other EU countries such the Netherlands and France. The 2017 French Presidential election is increasingly looking like it will be an important barometer for the future of the Union. News feeds are abuzz with concerns about whether Brexit is the start of a domino chain that will tear the EU asunder.

However, some commentators have suggested that, although there will be a formal exit of the UK, there will actually be ongoing deep coordination and low trade barriers between Britain and the EU. A technical exit but not an existential crisis. It is too early to predict with confidence which of many scenarios will come to pass.

But the fact that the EU’s stability is more uncertain today than it was yesterday will affect regional politics. In the U.S., you might have people looking nervously at the Dow but that is nothing compared to the concerns in Kiev, which is embroiled in a secessionist conflict in part because it chose to bet on the EU being an important part of the future of Ukraine.

For their part, politicians from the EU’s eastern neighbors countries are reacting to Brexit with–how shall I say it?—a stiff upper lip. Interfax-Ukraine reports:

First Deputy Speaker of the Verkhovna Rada of Ukraine Iryna Gerashchenko and Deputy Prime Minister for Reintegration of Moldova Gheorghe Balan have discussed the result of the referendum on Britain’s exit from the European Union (Brexit) and its consequences for both countries.

“Ukraine and Moldova are disappointed with the results of the referendum and are concerned about the growing number of eurosceptics in the EU. However, Ukraine and Moldova are committed to the path of European integration and reforms,” Gerashchenko wrote on his Facebook page on Friday afternoon following the meeting.

Brave face notwithstanding, Ukraine and other countries along the EU’s eastern border that decided to sign Association Agreements with the EU will likely need to be reassured that they chose wisely. Some Members of Ukraine’s Parliament are concerned that Brexit will mean the EU will become inward-focused and delay the implementation of aspects of the Association Agreement that came so dear.

The EU will need to think clearly and act decisively not only about how it will manage the divorce with the UK but also about its strategy regarding its eastern neighbors—including both the states of the former USSR and Turkey as well.

For a deep-dive into the EU’s recent policies towards its neighbors (written before Brexit), see this paper from the EU’s Institute for Security Studies.

Congratulations to Duncan Hollis on His Election to the Inter-American Juridical Committee

by Chris Borgen

We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which

…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.

It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.

No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.

With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee.  Congratulations!

The Return of the Emoji: Flags, Emoji, and State Recognition

by Chris Borgen

I thought I had largely said what I had to say concerning emojis and international law in my previous post. SRSLY. 😉

But then John Louth, who knows of my interest in issues of recognition and non-recognition of aspirant states, pointed out this article from Wired which discusses, among other things, the issue of which national flags are awarded emoji and which are not. So let us return to the emoji for another post.

Consider the following passage for the Wired article:

…the most contentious emoji arena isn’t food, or even religion. It’s flags. From October 2010 until April 2015, there were a limited number of flag emoji, including the Israeli flag—but notably, no Palestinian flag. When the Palestinian flag was added—along with some 200 other flag emoji—it was cause for celebration.

Palestine exists in an unusual limbo in international law. It is recognized by some countries as Palestine, and by others as the Palestinian Territories.

“Technology has been used as a weapon to revolutionize the Middle East, and now it is being used as a weapon to legitimize Palestine,” wrote Palestinian columnist Yara al-Wazir at Al Arabiya earlier this year. “Introducing the Palestinian flag as an emoji is more than just a symbolic gesture.”

The article then goes on to note that some national groups, such as the Kurds, do not have flag emojis.

So, how does the Unicode Consortium, a non-state actor, decide whether to assign a symbol for the flag of an entity claiming to be a state, especially if that statehood is contested? (For more on the Unicode Consortium, please see my previous post.) The Consortium’s FAQ explains the criteria:

The Unicode Standard encodes a set of regional indicator symbols. These can be used in pairs to represent any territory that has a Unicode region subtag as defined by CLDR [Common Locale Data Repository], such as “DE” for Germany. The pairs are typically displayed as national flags: there are currently 257 such combinations. For more information, see Annex B: Flags in UTR #51.

In other words, the Consortium’s regional indicator symbols are based on the International Organization for Standardization’s (ISO’s) two-letter country codes.

As described on its own website, the ISO is:

an independent, non-governmental organization made up of members from the national standards bodies of 162 countries. Our members play a vital role in how we operate, meeting once a year for a General Assembly that decides our strategic objectives.

Our Central Secretariat in Geneva, Switzerland, coordinates the system and runs day-to-day operations, overseen by the Secretary General.

It also describes itself as a network of national standard–setting bodies.  With its combination of a permanent secretariat as well as a bureaucratic network, the ISO has aspects of both an intergovernmental network and an international organization.  (See more on ISO governance, here.)

To receive a top-level country code from the ISO, an entity must be: (a) a United Nations member state, (b) a member of a UN specialized agency, or (c) a party to the Statute of the International Court of Justice.

Thus, the Unicode Consortium’s decision-making process to decide whether or not to assign a glyph for a country flag is based on the decision by the ISO, an organization with significant national government involvement, on whether or not a territory receives a country-code. The ISO’s decision is itself reliant on the aspirant entity’s relationship to the United Nations.

In short, the ISO has a two-letter designator for Palestine (see, for example, this ISO newsletter [.pdf]), so the Consortium by its own rules can (though does not have to) assign a code for the flag of Palestine. No ISO code for a Kurd state; no Kurdish flag emoji. And all of these stem from degrees of relationship of these entities to the UN.

In sum, a non-state consortium is basing its decisions on a state-based regulatory network (the ISO), which in turn is using criteria based on an intergovernmental organization (the UN). The result in the case of flag emojis is that the Consortium unlikely to assign a flag where the  ISO is not willing to assign a separate country code, and ISO will not assign such a code without first looking to UN practice.

Receiving a flag emoji is not the recognition of a state by another state or even by an interstate organization. Nonetheless there are many hurdles to the designation of a flag emoji. Given the significant state interest in issues of recognition, explicit or implied, this is not surprising.

And if readers find other interesting overlaps of the Unicode Consortium, emojis, and international law, please let me know!

Emojis and International Law

by Chris Borgen

Emojis: love them or hate them, you can’t seem to get away from them.  🙂  The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like.  And tomorrow, June 21, we will have 71 new emojis to play with.  Why will there be new emojis tomorrow? And what does this have to do with international law? Read on…

First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts.  Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).

Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.”  The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎

Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols  should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year.   (By way of perspective the total  “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here.  Can’t wait to use the team handball emoji!

But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:

The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.

“Our goal is to make sure that all of the text on computers for every language in the world is represented,”

However, as Mashable notes:

getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.

What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.

But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.

Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium.   The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)

Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question  of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji.  Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation.  Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated: (more…)