Author Archive for
Chris Borgen

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

When A.I. Met R.O.I.

by Chris Borgen

Over the years a few of us have written issues concerning battlefield robots. (See, for example: 1, 2, 3, 4, 5.)  Sometimes, we had links to remarkable videos of quadruped robots stomping through forests. Those robots and videos were made by Boston Dynamics, a company that started from an MIT research group.

Besides its designing quadruped robots, Boston Dynamics gained further renown when, in 2013, it was acquired by Google as part of that company’s broad push into robotics. Just last month, one of Boston Dynamics’ new videos wen viral; it highlighted its two-legged Atlas robot walking indoors, on snowy hillsides, lifting and stacking boxes, and being pushed by a human (and righting itself). Yesterday, Google announced that it was selling Boston Dynamics. Why? And what does this say about all the prognostications about the rise of the robots, either on the battlefield or in the workplace?

At its most basic level, the story here seems to be as much about the difficulties of post-acquisition integration of business cultures and goals as it is about robotics. An article in Bloomberg Business notes:

Executives at Google parent Alphabet Inc., absorbed with making sure all the various companies under its corporate umbrella have plans to generate real revenue, concluded that Boston Dynamics isn’t likely to produce a marketable product in the next few years and have put the unit up for sale, according to two people familiar with the company’s plans.

After Boston Dynamics’ 2013 acquisition, it was made part of Google’s broader robotics initiative, called Replicant. (Query whether naming the division after the murderous androids of Philip K.Dick’s dystopian classic Do Androids Dream of Electric Sheep, which became the movie Blade Runner, was a good idea.) Bloomberg Business explains:

At the heart of Replicant’s trouble, said a person familiar with the group, was a reluctance by Boston Dynamics executives to work with Google’s other robot engineers in California and Tokyo and the unit’s failure to come up with products that could be released in the near term.

While the issue inside of Google was less about the technology of artificial intelligence (AI) than about the return on the investment (ROI) of the robotics company acquisitions, according to Bloomberg Business the Atlas video did cause concern among some of the public relations folks at Google over whether humanoid robots  would be perceived as taking jobs from real human. Plus, as one PR person put it, some people found the robot “terrifying.” (Yeah, that “Replicant” name-choice seems increasingly like a bad idea. At least they didn’t call the business unit the “Terminator Division.”)

Many  have spent time writing and talking about the legal issues related to the use of remotely controlled or autonomous battlefield robots. The immediate issues stemmed from the use aerial drones, of course, but on the horizon has been the possibility of robots being deployed in ground combat (as opposed to in bomb demolition, or other areas where remotely controlled units are already deployed). I am all for lawyers anticipating issues caused by technological change. But before we get there, there are a host of legal issues concerning the transactions that will support the R&D that will develop this technology. With the potential sale of Boston Dynamics to Toyota, it bears noting that the immediate legal issues may have to do more with international business transactions than international humanitarian law.

Seeking the Regulatory High Ground: the International Civil Aviation Organization and Commercial Spaceflight

by Chris Borgen

In 1958, Air Force Chief of Staff Thomas D. White wrote: “For all practical purposes air and space merge, form a continuous and indivisible field of operations.” White later coined the term “aerospace” and used it in a Congressional hearing. Later it was used in policy papers to explain why the U.S. Air Force would also have the responsibility for space issues. (William Burrows, The New Ocean, 248.)

The International Civil Aviation Organization, a specialized agency of the UN, has just made a similar giant leap from air into space. Agence France Press reports that in a March 15 speech at the Second Annual Aerospace Symposium (there’s that word again) co-sponsored by ICAO and the UN Office on Outer Space Affairs (UNOOSA), ICAO Council President Olumuyiwa Benard Aliu said:

The International Civil Aviation Organization “recognizes that sub-orbital and outer space flights will foster new tourism and transport markets, and that investments in related research and development remain at a very healthy level,”…

“Personally, as an engineer, I am very excited to see the dream and theory of normalized space flight now becoming such a tangible reality,” he told an aerospace symposium in Abu Dhabi.

In making its case, the agency noted an uptick in the number of spacecraft designs that have made the leap from concept to reality, saying more will follow.

As SpaceNews put it: ICAO is “spreading its wings into commercial spaceflight.” Thinking holistically about the continuum of air and space activities does make sense. Virgin Galactic’s space planes and SpaceX’s and Blue Origin’s returnable, reusable rockets will have significant activities within the atmosphere as well as in space. And, so, we see domestic and international organizations adapting.

That adaptation is itself an interesting story. ICAO’s mandate is focused on aviation. Its vision statement is to “[a]chieve the sustainable growth of the global civil aviation system.” Even its 2014- 2016 strategic objectives make no mention on of space– or aerospace. However, Agence France Press reports that at the ICAO/ UNOOSA conference, the ICAO leadership stated that:

Rules must be put in place soon to ensure safety and security in space, as well as prevent the creation of a patchwork of regulations by individual states..

The agency suggested adapting the existing regulatory framework for aviation, for which the ICAO and national governments are responsible.

ICAO, as it stands, does not have enforcement authority. It studies,  fosters coordination and  develops policies and standards.

While there has been a focus on certain potential future space activities, such as asteroid mining, and their relation to the Outer Space Treaty, is there a need for a new treaty covering launches and activities such as space tourism? In the U.S., there seems to be a concern that too much regulation of the space tourism and orbital launch services could stifle the nascent industry. According to R&D:

Both the Federal Aviation Administration and the recently passed commercial-space competitiveness legislation from the U.S. Congress keep their distance from regulating space tourism, “as long as passengers receive explicit warnings about the hazards and the vehicles have basic safeguards,” the Wall Street Journal reported.

And so there are likely two discussions that will be taking place in the coming months. The first will concern the an institutional question: should ICAO become a norm-setter in regards to space activities? The second will address a set of regulatory issues: do we need a new treaty on aerospace activities, space tourism, and launch activities? Could consultation and coordination among national regulators be enough?

Stay tuned…

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: (more…)

Climate Change and the Syrian Civil War

by Chris Borgen

Scientific American has published an article by John Wendle on how climate change has spurred the conflict in Syria. Wendle writes:

Climatologists say Syria is a grim preview of what could be in store for the larger Middle East, the Mediterranean and other parts of the world. The drought, they maintain, was exacerbated by climate change. The Fertile Crescent—the birthplace of agriculture some 12,000 years ago—is drying out. Syria’s drought has destroyed crops, killed livestock and displaced as many as 1.5 million Syrian farmers. In the process, it touched off the social turmoil that burst into civil war, according to a study published in March in Proceedings of the National Academy of Sciences USA. A dozen farmers and former business owners like Ali with whom I recently spoke at camps for Syrian refugees say that’s exactly what happened.

He tells a story of environmental degradation, ill-conceived agricultural and water-management policies, and their effects:

“The war and the drought, they are the same thing,” says Mustafa Abdul Hamid, a 30-year-old farmer from Azaz, near Aleppo… “The start of the revolution was water and land,” Hamid says.

But the story Wendle writes is about more than Syria:

The refugee crisis will eventually subside, [Richard Seager,a professor at Columbia University’s Lamont–Doherty Earth Observatory] assumes, and the war in Syria will run its course. Nevertheless, he says, the region’s droughts will be more frequent and more severe for the foreseeable future. After closely studying dozens of climate models he and Kelley and their colleagues are convinced that continued greenhouse gas emissions will widen the Hadley cell, the band of air that envelops Earth’s tropics in a way that could further desiccate the lands of the eastern Mediterranean.

These past months many people have written about the Syrian civil war. Many have written about climate change. Wendle’s article considers both the perspectives of farmers who have become refugees and of scientists studying climate change. It is not only describes where we are, but how we got here, and what may be yet to come.

Highly recommended.

Weaponized Archaeology and Sovereignty Disputes

by Chris Borgen

Underwater archaeologist Peter B. Campbell has a very interesting opinion piece in the New York Times about how archaeological claims are being used as political weapons in sovereignty disputes. He explains:

For decades, global powers have been engaged in a race to exploit lucrative marine resources, from oil to fisheries to control of strategic waterways. But they have faced a challenge: How can a country claim new territory despite the restrictions of the United Nations Convention on the Law of the Sea? It turns out that “historical ties” to resource-rich regions can conveniently help to contravene international law.

At issue is how archaeological research is being injected into political rhetoric on issues such as claims of sovereignty in the Arctic, in the South China Sea, and over Crimea.  Campbell writes:

China’s deputy minister of culture, Li Xiaojie, put it bluntly: “Marine archaeology is an exercise that demonstrates national sovereignty.”

Russia has followed suit. In 2011, when he was prime minister, Vladimir V. Putin made headlines by retrieving two ancient ceramic jars from a shipwreck at Phanagoria, the ancient Greek city that is 10 miles from Crimea. The media cast it as a publicity stunt, but alarm bells sounded within the archaeological community. Mr. Putin’s political allies had invested $3.5 billion in research at Phanagoria, a submerged harbor with Roman-era shipwrecks. And while Phanagoria was the site of Greek colonies, Russian nationalists have adopted its ancient kings as proto-Russians.

For now, these archaeological findings are being used more as ostensible support of political rhetoric rather than as evidence, in the technical legal sense, of title.  Claims of sovereignty are most clearly based on specific treaties, such as boundary delimitation treaties, or broader treaties that set-forth rules for resolving disputes, such as the UN Convention on the Law of the Sea (UNCLOS).

This does not deny that historical state practice can be a component in resolving a dispute. But there are standards for assessing such historical examples. As the Permanent Court of International Justice wrote in the Eastern Greenland case:

a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.

The ICJ quoted this language at paragraph 134 in its Pulau Ligitan and Pulau Sipadan judgment. In the case of maritime sovereignty claims, the goal would be to turn old shipwrecks into evidence of a continued display of authority, also known as effectivite. Anneliese Guess wrote that Canada’s then-Minister of the Environment said in 2008 that, in regards to the search for shipwrecks in the Northwest Passage:

 We certainly think by establishing a long-standing presence in the Arctic that can enhance issues of sovereignty … Look at the strait (the Northwest Passage) not far from where this ship is….We think every bit of weight we can put behind our case for sovereignty is important. Adding history to that equation can only enhance that case.

While historic state practice can be important, the ICJ’s discussion in Pulau Ligitan is a good example of how difficult it can to make such a claim of effectivite. In that case, the ICJ wrote that the facts must “leave no doubt as to their specific reference to the islands in dispute as such.” (para. 136) In Pulau Ligitan, the ICJ was unmoved by many of the examples of naval activities as proof of claims of sovereignty. How much harder still, with archaeological shipwrecks from a century ago, let alone from Roman times.

Modern international law, with its focus on treaty obligations and effective dates (that draw a bright line making some historical facts less important than others) is not likely to accord much weight to  shipwrecks such as those mentioned by Campbell. (And probably no weight to some of them.) Nonetheless, politicians spin and deploy these archaeological finds in their wars of words. But in the end, as Campbell reminds us,

…archaeology rarely fits simple narratives. In fact, archaeology often demonstrates our shared human past.

A Note About Commenting on Opinio Juris

by Chris Borgen

This is a reminder to all readers and contributors concerning Opinio Juris’ policy regarding comments and posts. The “About Opinio Juris” page explains that:

We encourage civil and respectful dialogue among our bloggers, readers (who may post comments), and guest-bloggers. Our goal is to be both informative and thought-provoking by fostering vigorous intellectual engagement without vitriol. The marketplace of ideas is what we make of it.

[Emphasis added.]

Consequently, Opinio Juris maintains the right to edit or delete any comments that in our view does not meet the forum’s guidelines. This has been exceedingly rare.

One of the strengths of Opinio Juris is that our writers (both the masthead bloggers and our guest writers), commentors, and readers have a wide range of views. That breadth of perspective enriches the conversation. Please be respectful and constructive in your comments.

Symposium on Ruti Teitel’s “Transitional Justice and Judicial Activism: A Right to Accountability?”

by Chris Borgen

This week it is our pleasure to host a symposium on Professor Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf).  After an initial post by Professor Tetitel, we will have comments by Dinah PoKempner of Human Rights Watch, Professor Cesare Romano of Loyola, and Professor Chandra Sriram of the University of East London.

We are looking forward to the discussion!

2016 Lieber Prize: Call for Submissions

by Chris Borgen

Professor Laurie Blank of The American Society of International Law’s Lieber Society on the Law of Armed Conflict has sent along the request for submissions for the 2016 Francis Lieber Prize. The prize is awarded to:

the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Here are the details

Criteria: Any work in the English language published during 2015 or whose publication is in proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger on 31 December 2015. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

Submission: Submissions, including a letter or message of nomination, must be received by 9 January 2016. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e mail.

Printed submissions must be sent to:

Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia 30322
USA

Electronic submissions must be sent to:
Lblank[at]emory.edu

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2016.

In 2015, the winners were:

Book prize:
— Gilles Giacca, “Economic, social, and cultural rights in armed conflict” (OUP:2014)

Essay prize:
— Tom Ruys, “The meaning of ‘force’ and the boundaries of the jus ad bellum: are ‘minimal’ uses of force excluded from UN Charter Article 2(4)?’, 108 AJIL 159 (2014).

Freedom of Navigation Operations and the South China Sea

by Chris Borgen

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims. Other countries have also built on various islands and reefs, positioning for their own claims. But the scope of China’s activities had brought the issue back to the forefront.

The current flurry has been about the U.S.’s reaction and, in particular, whether the U.S. will use of “freedom of navigation” (FON) operations (previously discussed by Julian, here) in the midst of all this activity in the Spratlys.

According to the BBC, Hua Chunying, a spokesperson for China’s Foreign Ministry stated:

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight.”

On Tuesday, US Defence Secretary Ash Carter expressed “strong concerns” over island-building, and defended Washington’s plans.

“Make no mistake, the United States will fly, sail and operate wherever international law allows, as we do around the world, and the South China Sea will not be an exception,” he said at a news conference with the Australian foreign and defence ministers.

“We will do that in the time and places of our choosing,” he added, according to Reuters news agency.

According to the U.S. Department of State, the U.S. has undertaken such freedom of navigation (FON) operations since 1983 to “exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention.” This is a topic where one can see the U.S. refer explicitly and repeatedly to international law:

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.

Emphases added.

A year-by-year summary of Freedom of Navigation operations by the U.S. can be found on the U.S. Department of Defense website, here.

However, the BBC notes that:

The US might have mounted sea patrols in this area, but not for several years, our analyst says – and not since China began its massive building programme in the South China Sea.

A US military plane that flew near one of the islands in May was warned off – eight times.

The US now has to decide whether to send in its ships and risk confrontation, or back down and look weak, our analyst says.

How the situation evolves from here will depend in part on the reactions of other states that border the South China Sea or use its sea lanes.  Stay tuned…

Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.