Following-up on my recent post, I see that the Wall Street Journal reports that President Qaddafi no longer plans to stay in a large tent on the grounds of a home owned by the Libyan government in Englewood, NJ, during the opening of the UN General Assembly this fall. No specific reason is being given for the change, although diplomatic negotiations are the likely reason.  However, it is interesting to note that last week Englewood filed a suit against Libya and the construction contractor that had been renovating the Libyan property (probably in anticipation of Qaddafi’s visit). According to Findlaw (which also has links to the court papers), after an August 24th stop work order by Englewood’s city engineer was ignored:

Englewood Mayor Michael Wildes had the City Attorney Bill Bailey sue to get a temporary restraining order and injunction against the Libyan Government and its Greenwich Village-based New York City contractor, Quattro Construction.

The lawsuit contends that Libya and the contractor:

1. Have “not maintained Soil Erosion and Sediment Control (SESC) measures on site. Based on the amount of disturbance taking place on the property, the applicant will be required to obtain a SESC permit.”

2. “Has not obtained a tree permit for the trees cut down on the property;”

3. Must submit a grading plan to the City for “review and approval,” and potentially a “Soil Movement” permit;

4. Obtain approval for the construction of a wall on the property, which “may require a Stream Encroachment Permit for construction near the pond area.”

I love it when NJ tree permit litigation and international relations overlap!

The local news in New York and New Jersey is abuzz this morning with unconfirmed rumors that, for the opening of this year’s UN General Assembly, Libyan President Muammar Qaddafi is planning to stay in an air-conditioned “Bedouin-style” tent  on the grounds of a residence owned by the Libyan government in Englewood, New Jersey, a suburban town of 30,000. According to the NY Times, he originally wanted to pitch his tent in Central Park, but that idea was nixed by NY city officials.

On the Brian Lehrer Show on WNYC, Congressperson Steve Rothman argued that while the U.S. has obligations under the UN Headquarters Agreement to allow Qaddafi into the country to attend UN meetings, that does not extend to his being able to choose to stay anywhere in the country. He may have been referring to Sec.13(d) of the Agreement, which states:

Except as provided above in this section and in the General Convention, the United States retains full control and authority over the entry of persons or property into the territory of the United States and the conditions under which persons way remain or reside there

Rothman, who, as it happens, had been the mayor of Englewood in 1982 when the Libyan government purchased the property, also argues that this issue has already been dealt with by the State Department. In 1982, he had asked the Reagan Administration for a finding curtailing the property’s use, which resulted in a State Department statement that only the Libyan Ambassador could reside there. (I have not seen the document, so I don’t know exactly what it is.)Rothman’s interpretation is that this precludes Qaddafi from staying there for any length. His interpretation is in part based on what he says was the intent of the declaration which was to prevent the land in Englewood from being used to house Qaddafi–or any other head of state–based on the concern that Englewood did not have the means to guarantee security for a head of state and that it would be too disruptive for town residents.

The Times reports that

A State Department official, speaking on condition of anonymity, said on Thursday, “We expect we’ll be able to come to an arrangement that will respect the sensitivities of the local population.”

[REVISION: I have realized that in the version originally posted, I inadvertantly left out that Qaddafi was planning on staying in the tent during the opening of this year's General Assembly. I have corrected the original version of the text.]

In case this is of interest to Opinio Juris readers, I want to point out that I have a new essay posted to SSRN entitled Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion. Here’s the abstract:

This essay, written for the South Texas Law Review’s Ethics Symposium, considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. It focuses on the relationship of credible legal arguments to legitimacy and reputation.

Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one’s treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Moreover, in “fourth generation conflicts” such as this, a sense of “moral cohesion” is especially important. This is aided by a sense of the legality of one’s actions. Part II focuses on how the Bush Administration oscillated between a hostility to international law and attempts to rewrite the rules of international law concerning the use of force. While the United States was able to foster a new understanding of international law that legitimized the invasion of Afghanistan, the invasion of Iraq was another matter. Regarding Iraq, the Bush Administration made arguments that undercut the very foundations of the law of the use of force. It acted in a way that maximized short-term flexibility but damaged the reputation and efficacy of the United States (at least into the medium-term) and may have weakened some of the foundational principles of international law.

Finally, Part III considers some of the effects of these legal policies on U.S. foreign policy beyond Iraq by considering the interplay or power, responsibility, and reputation.

More broadly, this essay is part of my general interest in how great powers use international legal arguments to justify their foreign policies. I also explore this theme in my new article in the Chicago Journal of International Law on U.S. and Russian arguments related to South Ossetia and Kosovo, which l will post to SSRN in the near future.

On July 22nd, the tribunal arbitrating the dispute between the Government of Sudan and the Sudan People’s Liberation Movement/ Army over the Abyei region rendered its final award concerning boundary delimitation (and, effectively, oil resource exploitation rights). (Links to the webcasts of the oral proceedings here.) The Washington Post reports:

Sudan’s fragile peace overcame a major hurdle Wednesday when a legal panel drew a compromise map splitting an oil-rich region between the government-held north and the semiautonomous south controlled by former rebels.

The court ruling on the Abyei region gave the northern government control of significant oil fields and handed the southern administration a large area that contains the home villages of many of those who fought during a 20-year civil war.

The international community urged the north and south to swiftly implement the ruling by the Permanent Court of Arbitration, which was hailed as just by both sides.

“The tribunal gave something to everybody,” said Vanessa Jimenez, a lawyer for the south.

The compromise solution had implications not only for oil resources (which some claim are already largely tapped in Abyei) but also water resources and grazing rights. The Abyei arbitration thus provides a snapshot of what may be increasingly common: complex resource allocation issues embedded in broader conflicts.  Here, at least, an international dispute resolution mechanism (the Permanent Court of Arbitration or “PCA”) has played an important role in stabilizing the situation. The Post quoted Riek Machar Teny, the deputy chairman of the Sudan People’s Liberation Movement, as  saying “I think this is going to consolidate peace in Sudan.”

The Abyei arbitration also points to an institutional strength of the PCA, in that it has optional rules for resolving disputes when only one party is a state, as in this case (available here in .pdf). The International Court of Justice, by contrast, would have jurisdiction in contentious cases only between two or more states (See art. 34(1) of the ICJ Statute).

As we celbrate the 40th Anniversary of the Apollo 11 moon landing, it brings to mind that state of space programs and of space law.

Space law has long been the preserve of public international law, with the Outer Space Treaty, the Moon Treaty, and the International Space Station (ISS) Agreement. However, the rise of commercial space ventures is providing much added vitality (and legal complexity) to spaceflight.

In this post, I will focus on some of the issues related to “classic” government-led space programs. I will turn to commercial spaceflight at greater length in a later post.

The recent agenda of the UN Committee on the Peaceful Uses of Outer Space (.pdf) gives a good snapshot of the issues of concern to government space agencies. The agenda has items related to the use of nuclear power in space exploration, space debris (remember that Russian-U.S. satellite collision? And now the ISS is dodging space junk),  the delimitation of what is “outer space” (should “air law” apply in a given case or “space law”), the apportionment of geostationary orbits (think of it as prime real estate for communications satellites), and issues of financing and interests in mobile property (probably driven by the burgeoning commercial space industry). As the rise of the railways spurred legal innovation in the 19th century, air travel in the early to mid-20th century, and the Internet in the late 20th/ early 21st centuries, space law is a discipline that may well have significant growth, innovation, complexification, and maturation in the near future.

Here are a few issues arising out of the evolution of national space programs:

With the shuttle-fleet facing mothballing and NASA’s new Constellation program probably not beginning operations before 2015 at the earliest, the U.S. will face a gap of a few years. The likely result will be agreements with Russia in which U.S. astronauts will completely rely on Soyuz launches to access the ISS. For the first time, the U.S. will be completely reliant on outsourcing its manned launches.

Outside of this tight U.S/Russia optic though, the big story is the rise of China and possibly other countries in human spaceflight.  India, for example, has expressed an interest in having its own human-spaceflight capabilities. How will the spreading of crewed spaceflight technology affect the interests of those nations which, until then, had relied on U.S. or Russian launches?

The Earth orbit human spaceflight story is a precursor for the U.S’s return to, and other states striving for, the Moon. Back in the (original) space race, when one U.S. scientist was asked what will Americans find when they get to the moon, he quipped “Russians.” Fears of Russian dominance in space–their being the first to launch an orbiting satellite (Sputnik), first to launch a spacecraft (Luna 1) that left the Earth’s gravitational field, first to launch a person into space (Yuri Gagarin), etc–drove U.S. space policy in the 1950’s and 1960’s. (And the lack of a Soviet threat led to the foundering of the U.S. manned space program in the 1970’s.) At least some in the U.S. are hoping that fears of China landing on the Moon before the U.S. can return will drive new U.S. investment in crewed spaceflight. The U.S. has expressed an interest in moving as quickly as possible to a permanent station on the Moon. The multinational scientific bases in the Antarctic and the ISS agreements provide useful analogies for the issues that may arise in constructing the legal framework for such an undertaking. This may also cause a reassessment of the Moon Treaty and other agreements as to the utilization of the Moon and asteroids (this will be even more pronounced with the rise of commercial ventures that may seek to mine the Moon or near-Earth asteroids).

This will all set the stage for sending humas to Mars, possibly sometimes in the 2040’s. (Here’s what Apollo 11’s Buzz Aldrin recently wrote about going to Mars.) As that will be an engineering feat summing up the lessons of the Moon program, the ISS, and other aspects of human spaceflight, so too will the legal and policy frameworks be the culmination of nearly a century of spaceflight. The practical issues of sending a multinational crew of people, on a multinational spacecraft on a multiyear mission to another planet (which may or may not have alien microbial life) will push space law into places until now only theorized.

In another post I will turn to some of the issues of the commercialization of spaceflight.

Last week I wrote a post about secessionism in Flanders and regionalism in Europe, more generally. That post had been inspired by a post by “Chirol”at the blog Coming Anarchy. I now see that Chirol followed-up his original Flanders piece with an essay considering a possible future of microstates in Europe. He wrote:

I’ve put together a map of the future of Europe in 2020. It is purely speculative and in no way a firm prediction, but rather a sketch of the possibilities and list of the most likely cases. It is by no means exhaustive and you’ll notice seemingly obvious states such as Wales, Sicily, Crete and others are not listed. This is in part because I will argue that two local conditions are necessary for a viable movement and successful independence.

First, the state must be well off economically and able to hold it’s own, i.e. it must have more to gain than lose. Hence, states like Baden-Württemberg and Bavaria are the two richest in Germany, essentially subsidizing the rest would have more motivation than the poor underdeveloped east German states which feed off the rest. The second condition is that the region must have a well developed and unique identity which comes in the form of a strong dialect or different language, history of independence or autonomy and other characteristics that go into defining a culture.

In his speculative map of Europe in 2020, Chirol includes not only Flanders, but Baden-Wurtemburg and Bavaria (from what had been Germany), Padania (which would be carved out of Northern Italy), and the Basque Republic and Catalonia as independent states.

Chirol is careful to explain that this is a thought-experiment. There are reasons to be skeptical that regionalism within the EU will turn into widespread secessionism. For example, the very EU rules that empower the regions may actually act as steam valves, reducing the pressure building for full independence. Regionalism within the EU is a pretty good compromise in which the regions get much of what they would have as sovereigns. It may be enough to satisfy many of those who had clamored for independence.  I am not sure if this will work, but it is a factor to consider. 

More significantly, few regions would want to take the step to become independent states if the pre-existing country would veto the new state’s accession into the EU. They can remain autonomous regions within the existing state and reap the EU regulatory benefits described in my previous post and avoid the relatively bad scenario of seceding and then being frozen out of the EU by an irate predecessor state. In that case, they would receive neither EU regulatory benefits for being a subnational region nor the advantages of being an EU member state.

Of course, both of these arguments assume that decisions regarding secession would be made by through cold cost/benefit calculations, and that is a shaky assumption.

The Wall Street Journal has the story:

After six days of grueling debate, Iceland’s parliament voted narrowly Thursday to apply to join the European Union — an institution from which the country long stood proudly apart.

But a binge of overseas expansion by Iceland’s buccaneering banks led to a towering stack of bills that couldn’t be paid when the credit crunch cut off funding last fall, leaving Iceland with few options. Alone, with a currency that no one wanted to buy, Iceland’s banking system went under.

The measure passed 33-28, with two abstentions, and followed vigorous discussion on farms, fish and finance that reflects Icelanders’ lingering misgivings about the regulations that come with EU membership.

The country’s new prime minister, Jóhanna Sigurdardóttir, elected after the financial crisis, made joining the EU — and, eventually, the stable euro currency — a priority. With Thursday’s vote, she wrangled her own center-left party into line and cajoled support from parts of her usually euro-skeptic left-wing coalition partner and a handful of smaller parties.

This would leap-frog other coutntires, such as Albania, Turkey, and Croatia who are seeking EU membership. The WSJ adds:

Iceland is likely to have an easier time with EU accession than other aspirants, such as Albania, which wrestles with poverty and corruption, and Turkey, whose large population of Muslims has caused consternation in France and Germany. Thursday, the EU commissioner in charge of enlargement praised Iceland’s “deep democratic traditions.”

But hurdles remain, among them an expected popular referendum on the matter and substantial concerns over the economic hit to the fishing industry from adopting EU quota and catch rules. Fish and seafood accounted for 37% of Iceland’s exports in 2008.

Even if all goes smoothly, accession is at least 18 months away, and likely more. After joining, Iceland would still need to meet stringent economic and currency-stability criteria — which it is far from reaching — before adopting the euro.

I wonder if Iceland’s accession may spur other European Free Trade Area members, such as Norway, to join the EU. It will also be interesting to watch how the news of Iceland’s probably accession will play in Turkey, in particular. Note that the EU enlargement commissioner made a comment about Iceland’s “deep democratic traditions.” I wonder if that was meant to deflect any complaints from Turkey?

Check out the whole story at the WSJ.

Hat tip: Foreign Policy Passport

Following-up on my recent post on assessing systemic bias in international investment arbitration, readers may be interested in a recent article by Susan Franck of Washington & Lee University entitled Development and Outcomes of Investment Treaty Arbitration. Here’s the abstract:

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications

Marc Lynch at Foreign Policy.com has written one of the best blog posts I have read in a long time: Jay-Z vs the Game: Lessons for the American Primacy Debate.  Lynch combines a music obsessive’s knowledge of rap with an international relations scholar’s understanding of power politics. This is a story of rising challengers, sneak attacks, structural power, transition narratives, and alliance politics.  And if your reaction is “blah, blah, I don’t like rap,” I say just go read the post anyway, it is great whether or not you care about the history of the Jay-Z/ Nas beef.

In short, it is an excellent lesson on analyzing power relationships. And did I mention he’s got links to music? Bonus!

I want to quickly point to a post from late last month at EJIL: Talk! that I just recently came across. Tolga Yalkin considered the argument that international investment arbitration as a system is fundamentally biased. Considering arguments set out by Professor M. Sornarajah of the University of Singapore, Yalkin wrote:

Sornarajah advanced the proposition-enjoying increasing purchase in the international legal community-that bilateral and multilateral investment agreements and the system of international investment arbitration was conceived, and indeed continues to operate, on a number of false assumptions. Foremost among these is the ‘hunch’ that a system of international investment arbitration would significantly increase the inflow of capital to developing countries, bringing with it wealth and development to some of the world’s poorest citizens. According to Sonarajah,this justification has been promoted by neo-liberal business interests-rather than arising from genuine social concern, Furthermore, he claims that the system has ‘entrenched’ itself by providing arbitrators and international law firms-for whom the system ‘produces golden eggs’-with vested interests. The result, as he sees it, is that the system is intrinsically geared towards the interests of business and capital-exporting States. In support of this contention he provides examples that illustrate the expansion of jurisdiction enjoyed by tribunals.

Yalkin argued that:

Despite painting a compelling picture of what he sees as the true nature of international investment arbitration, Sornarajah’s submission must be seen, at best, as a starting point for further inquiry. The main flaw of his approach is that reaching firm policy conclusions requires more than polemic arguments and anecdotal examples; it requires a solid and rigorous analytical approach to considering both:

(1) the outcome of investment decisions; and

(2) the legal reasoning engaged in by investment tribunals.

Turning to the task of assessing systemic bias, Yalkin first critiqued some of the difficulties in attempting to chart jurisprudential trends as an empirical matter. Next, he argued that the outcomes of cases are only part of the story; it is only by analyzing the reasoning can one assess issues of systemic bias. Yalkin found that Sornarajah’s argument “that neo-liberalistic ideology took root in the context of international investment arbitration, perpetuating business interests to the detriment of the developing countries, has merit.” (I considered in this article the question of whether and how international investment arbitration assists in the transfer of international norms into a domestic society.) However, it is in need of emprical verification. Yalkin, for his part, does a good job in setting out the pitfalls and hurdles in trying to assess systemic bias in investment arbitration and makes some useful suggestions in how to move forward.

Amos Guiora has a new essay at Jurist about judicial review and decision-making in the executive branch. It begins:

Judicial review is judicial review. It is all or nothing. Sitting as the High Court of Justice, the Israeli Supreme Court proved that once again this week. The facts of Ashraf Abu Rahma vs. The Judge Advocate General (HCJ7195/08) are simple: the Israel Defense Forces’ Judge Advocate General decided to order a disciplinary hearing rather than a criminal trial for a brigade soldier who fired rubber bullets at a handcuffed Palestinian. In response to this judgment, human rights groups filed a petition to the High Court arguing that the decision was unreasonable and that the brigade commander must be brought before a court martial.

The Court held that the JAG’s decision was not reasonable, thus clearly emphasizing a powerful lesson: the executive cannot operate outside the boundaries of the law, especially when it involves the use of military force. This lesson should reverberate loud and clear in the US courts, where the judiciary should end its near automatic deference to executive determinations regarding the use and application of force.

[Empasis added.]

Later, he writes:

Nothing is more dangerous to a democracy than an ‘unfettered executive’. Justice Jackson was both prescient and correct in Youngstown Sheet and Tube Co. v. Sawyer. His concern was also timeless. This principle must be applied across the board. Encouraging judicial review of some executive branches but not others will do no more than ensure unequal justice under law. The JAG’s decision must be subject to review in the same vein as that of any other executive decision maker. The essence of active judicial review is to protect the unprotected and to ensure that the executive acts within reasonable boundaries as broadly defined.

By ruling that the JAG did not act within these boundaries, the Court is sending a loud and clear message: the executive is subject to strict judicial review and it cannot hide behind the cloak of executive decision making. That powerful and compelling message should be adopted by the US Supreme Court, particularly when striking a balance between the legitimate rights of the individual and the equally legitimate national security rights of the State. The free pass that the Supreme Court has historically granted the executive in national security cases (Korematsu v. United States being the poster child) has, in the long-run, harmed the individual and the state alike.

Check it out.

Coming Anarchy has pointed out this article from The Daily Telegraph about the increasing calls for Flanders to secede from Belgium and how this may be aided by the rise of the EU.

Before getting to the main point, I just have to point out this snarky opening from the article:

The notion that breaking up a country as insignificant as Belgium could lead to anything more appealing in its place may seem far-fetched beyond its shores. But to many of the six million who live in the Dutch-speaking Flanders region, the growing strength of the EU makes it an increasingly attractive option.

“Belgium is too heterogeneous. There is too much diversity and too many different views,” said Jeroen Overmeer, spokesman for Flanders’ Nieuw-Vlaamse Alliante party, separatists who made big gains in this month’s nationwide Belgian elections.

There are too many different views in Belgium for it to survive as a single state!? Anyway, the main issue here is  how European integration can also support the disintegration of existing states. Overmeer explains:

“The EU makes it possible for countries such as this one to split up. We believe we are experiencing both globalisation and localisation. Some problems are global, like defence or the environment, and these need to be dealt with by the EU. But at the same time democracy needs to be closer to the people, and that is why we are a regionalist party. The two trends go hand in hand.”

“Regionalization,” in the sense it is being used in the EU, refers to regions within existing states being given increasing autonomy, without complete sovereignty. This is different from secession–splitting off from an existing state. However, in the EU the line between regionalization and secession is getting thinner and thinner:

For some EU officials, the mere possibility [that Flanders could go it alone] is a triumph for the institution.

“Yes, regions could survive alone,” said Hendrik Theunissen, an official in the forward studies unit of the Committee of the Regions, a Brussels institution.

“The EU does not get involved in internal politics in individual countries, but it is a fact that regions are already well embedded in the EU structures. They opened their first offices in Brussels in the 1980s. Now there are more than 300 of them here. The EU pushes towards decentralisation. Experience shows it has been positive.”

As the EU  deepens, it is giving more and more powers to the regions, which empowers them vis-a-vis their national governments. For example…

Thomas Barnett has pointed out a map in Business Week that is coded for the sovereign bond rating of each country (the map is a click-through from this page).  What Barnett calls the “Old Core” (the U.S.,  Canada, western Europe, etc.) tend to have the highest ratings, the “New Core” (Brazil, Russia, India, China and other rising powers) have the next highest group of ratings and “Gap” states (which are relatively disconnected from the global economy) have the lowest ratings.

It is interesting to flip between the bond rating map, and Foreign Policy’s failed states map.  They track to each other fairly well. Moreover, it also has a decent correlation with this map that charts travel times to major cities. Comparing the transportation map to the bond rating and failed state maps, one sees that, generally speaking, the better a country is connected to world travel, the more stable its government and the better-rated its economy. Don’t ask me which came first, though, the connectivity or the stability…

Moises Naim of Foreign Policy has an essay in the new issue called “Minilateralism: The magic number to get real international action.” His piece has spawned reactions from the bloggers at FP.com. Naim’s essay is the latest volley in a debate on “big” or “small” multilateral action should be; however, although he and other bloggers do a good job setting out the advantages (and some weaknesses) of “minilateralism,” the issues of normativity and legality are all but ignored.

Naim begins by setting out the negotiation problems of what one could call “big” multilateralism:

When was the last time you heard that a large number of countries agreed to a major international accord on a pressing issue? Not in more than a decade. The last successful multilateral trade agreement dates back to 1994, when 123 countries gathered to negotiate the creation of the World Trade Organization and agreed on a new set of rules for international trade. Since then, all other attempts to reach a global trade deal have crashed. The same is true with multilateral efforts to curb nuclear proliferation; the last significant international nonproliferation agreement was in 1995, when 185 countries agreed to extend an existing nonproliferation treaty. In the decade and a half since, multilateral initiatives have not only failed, but India, Pakistan, and North Korea have demonstrated their certain status as nuclear powers. On the environment, the Kyoto Protocol, a global deal aimed at reducing greenhouse gas emissions, has been ratified by 184 countries since it was adopted in 1997, but the United States, the world’s second-largest air polluter after China, has not done so, and many of the signatories have missed their targets.

He then moves on to his suggestion:

The pattern is clear: Since the early 1990s, the need for effective multicountry collaboration has soared, but at the same time multilateral talks have inevitably failed; deadlines have been missed; financial commitments and promises have not been honored; execution has stalled; and international collective action has fallen far short of what was offered and, more importantly, needed. These failures represent not only the perpetual lack of international consensus, but also a flawed obsession with multilateralism as the panacea for all the world’s ills.

So what is to be done? To start, let’s forget about trying to get the planet’s nearly 200 countries to agree. We need to abandon that fool’s errand in favor of a new idea: minilateralism.

By minilateralism, I mean a smarter, more targeted approach: We should bring to the table the smallest possible number of countries needed to have the largest possible impact on solving a particular problem. Think of this as minilateralism’s magic number.

For example, in trade the G-20 comprises about 85 percent of international trade. Worry about negotating a treaty among those twenty states, not the nearly 200 states, most of which have very little impact on international trade.

Among the various responses…

It seems likely that Spain is about drastically curtail its universal jurisdiction law–the law that had been used by Magistrate Baltasar Garzon to go after Augusto Pinochet–such that it really won’t be universal jurisdiction at all.  While some (many?) of my international law colleagues may view this as a step backwards, I welcome this adjustment as a prudent move that will foster the international rule of law.  More on that in a moment, First, here’s the background from the BBC:

Currently, 10 cases from five continents are being investigated by Spanish judges, under the principle of “universal jurisdiction,” which holds that some crimes are so grave that they can be tried anywhere, regardless of where the offences were committed.

In a recent statement, almost 100 organisations collectively praised Spain’s “pioneering approach,” gushing that the country “should feel proud of itself” for becoming a reference point for other nations.

Except, Spain’s left-leaning government sees things rather differently.

In parliament, it is sponsoring a controversial change in the law, which would limit the future scope of universal jurisdiction to cases in which (i) the victims are Spanish, (ii) the alleged perpetrators are in Spain, or (iii) some other clear link to Spain can be demonstrated.

On Thursday, the proposal was approved by lawmakers in the lower house by an overwhelming 341-2 vote, with three abstentions. Senate approval is seen as a formality.

Human rights lawyers claim that the government of Spain is reacting to pressure from other governments. The BBC continues…

Frequent Opinio Juris commentor Patrick O’Donnell has an informative post at Ratio Juris about shari’ah and jurisprudence in Islam. It begins:

Having recently introduced the subjects of constitutionalism and democracy vis-à-vis Islam, I thought it would help to say a few basic things about Sharī‘ah and fiqh, in particular as they have bearing upon our concerns about human rights and democracy, concerns of course common to Muslims and non-Muslims alike.

The post covers alot of ground, ranging from how the function of Shari’ah may be analogized to natural law as described by the Stoics to the relationship of Shari’ah to democratic theory.  Check it out.

The Senate vote was 62-35.

Here’s the story at Foreign Policy.com.

Foreign Policy.com reports:

“Cloture passed on a 65-31 vote,” a Congressional source relays at 11:30am. “There was applause in the Senate gallery after the vote was announced. Republicans are threatening to exercise their right to use all 30 hours of floor debate before permitting a final vote, so Koh may not be formally confirmed until tomorrow.”

See also IntLawGrrls.  Yesterday, by the way, Senator Lugar issued a statement supporting Koh’s confirmation.

It remains to be seen whether the 30 hours of floor debate will be used or not.

UPDATE:

Here’s the breakdown of the vote and various statistical charts.

Hat Tips: Stephanie Farrior (Vermont Law School) and Catherine Powell (Fordham Law School)

Well, it’s about time. 

On Monday, Senator Harry Reid moved for cloture of debate on the nomination of Harold Koh to be the State Department’s legal adviser. (Be sure to check out this article.) Sixty votes will be needed for cloture and then fifty votes for his confirmation. Both votes are expected to come this Wednesday, assuming no further shenanigans.

Three months ago, the legal blogosphere was abuzz with posts concerning Koh’s nomination to be the top lawyer at the State Department. For most, the nomination was a no-brainer: an influential international legal scholar and the Dean of Yale Law School, he had already served in government in the Reagan and Clinton administrations, most recently as Assistant Secretary of State for Democracy, Human Rights and Labor.

But then various pundits decided to caricature and demonize him. In the days and weeks to followed, there was a robust airing of his views and, I think, a debunking of the misconceptions promulgated by some.

Koh testified before the Senate Foreign Relations Committee almost two months ago, had submitted written answers to the Senate before that, was subject to a public debate via the blogosphere and op-ed pages (see, for example, the Opinio Juris posts here, and IntLawGrrl posts here, each of which reference posts from other sites), received endorsements from a who’s who of legal scholars and practicing attorneys, including former Solicitor General Theodore Olson, former Judge Ken Starr, former Bush Chief of Staff Josh Bolten, seven former State Department legal advisers and 103 law school deans (to name a few), and was succesfully voted out of the Senate Foreign Relations Committee by a 12-5 vote, including the support of the committee’s leadership, Senators Kerry and Lugar. 

Nonetheless,  Senators Vitter and Cornyn put a procedural hold on the full-Senate vote needed for his confirmation. This seemed to be less about the need to further explore Koh’s views, which by this point had received more scrutiny than any nominee for the post of Legal Adviser had ever had, and more just an attempt to play procedural “Gotcha!”

OK, partisan politics can be fun, but with unrest in Iran, North Korea acting even weirder than usual, and pressing issues in Afghanistan and Iraq (to name a few current concerns), wouldn’t it be a good idea to move forward on the nomination of the State Department’s top lawyer? The vote for cloture may be contentious. It should not be.  Koh has been thoroughly vetted. It is time to set aside partisan politics, vote on Harold Koh’s nomination, and confirm him.

Once more, the online world of the metaverse (a term to encompass online virtual communities like Second Life, Entropia, etc.) reflects “real world” economic transactions. (See this and this for background.) The latest story (via Futurismic) is how an executive of Ebank, a bank set up in the metaverse Eve Online, illegally sold the deposits and collateral of its depositors to other gamers for real currency.

The Futurismic post is based on this New York Times story, which states:

It’s not clear how much of that virtual money was embezzled and now needs to be found, somehow, by Ebank. But if the Eve chatter is accurate, it could amount to 10 percent of deposits withdrawn. That could wipe out whatever capital was used to finance Ebank’s loan book. As in the real world, that would spell insolvency.

And here’s where the Ebank story may have implications for real-world bankers, regulators and users of financial services. It’s not the first virtual bank to run into trouble — something similar happened in Second Life, which is governed by United States law.

In Eve’s virtual universe, there is no financial regulator, no Federal Deposit Insurance Corporation. And so far there is no lender of last resort, either.

For now, Ebank’s multinational directors appear to be acting just as many real-world boards would: engaging in finger-pointing and recriminations. Eventually, however, they will have to offer a solution to the depositors clamoring to get their money back in full.

As in the real economy, the customers could be tempted to appeal to a higher authority — Eve’s creators. That would probably involve appealing to the Council of Stellar Management — a body of nine members chosen by Eve players to represent them in discussions with CCP.

But the word from Reykjavik isn’t likely to comfort Ebank’s depositors. Eve’s creators at CCP — which employs its own economist and philosopher — take a laissez-faire approach, leaving most such matters to the game’s users to sort out. Unlike the Icelandic government, which allowed three local banks to nearly bankrupt Iceland with unchecked expansion, CCP is determined not to encourage entities to become too big to fail.

Whether and how Ebank can get out of its mess without a protective cocoon of support from Eve’s ultimate powers is unclear. But policy makers around the world, who bailed out greedy bankers, might want to monitor the situation.

This other-worldly simulation could provide clues on how they can avoid stepping in to save the financial system — and the moral hazard that goes with banks’ expectation that they will