Tomorrow (Friday, October 23rd), the S.J. Quinney College of Law of the University of Utah will host a symposium entitled Freedom from Religion: Rights and National Security. You can watch the symposium online via a link on this page. Here’s the brief description:

Based on Professor Amos N. Guiora’s new book, Freedom from Religion: Rights and National Security (Oxford University Press, 2009), this Symposium will explore the limits of tolerance of religious extremism in five countries and its impact on the current terrorism threat our world faces. By drawing on varied perspectives and disciplines — religion, cognitive science, history, philosophy, and law — the panelists will challenge conventional wisdom by asking whether the threat of future terrorism might be lessened by government’s curtailing religious extremism.

The agenda is as follows (be sure to adjust for your timezone!):

8:30 AM – 8:45 AM Welcoming Remarks: Professor Terry Kogan, Moderator
8:45 AM – 9:15 AM Presentation of Book: Professor Amos Guiora
9:15 AM – 9:40 AM First Amendment Response: Professor Scott Matheson
9:40 AM – 10:05 AM Religious Studies Response: Professor William Deal
10:05 AM – 10:30 AM Religious Practitioner’s Response: Pastor John Lentz
10:30 AM – 11:00 AM Audience Written Questions/E-mails/Tweets Posed by Moderator to Panelists

The U.S. East Coast times would be  10:30 am - 1:00 pm.

Back in July, I had written a post about current issues in governmental space programs and I promised a follow-up on the private space industry. Well, that post never materialized. However, in lieu of that post I want to point to this post by author Brenda Cooper on Futurismic that has a quick and fun tour of the major U.S. players among the new space start-ups. She describes (and has links to) a few of the companies, as well as the new “spaceports,” and also has a link to the Rocket Racing League’s promo video that really should not be missed. By the way, Futurismic also had a post from around the time of the Apollo moon landing anniversary looking at the current state of private (and public) space programs.

The international legal issues generated by such these new space start-ups are as wide-ranging as the business models, which encompass topics such as private satellite launches, space tourism,  private space stations/ hotels in space, energy generation, and moon landings. As more companies move into these areas, the basic framework of the Outer Space Treaty will probably need to be supplemented. It will e especially interesting to see how much of these relations among new space ventures will be circumscribed by new government regulations and international agreements or rather be defined primarily by contractual provisions of an industry that may grow and change faster than the regulators are able to keep up.

And, as incredible as the ventures listed above are, my favorite example is the story of some other balloon boys and girls, four Spanish teenagers and their high school teacher, who used a helium balloon to loft a camera 20 miles to the upper reaches of the atmosphere. (Check out these pictures.) Total cost: about 200 bucks. (Perhaps with some refinements this could provide super-cheap image intel.) When you have teen-aged hobbyists sending payloads as high as NASA research balloons, then you know the regulatory environment is about to undergo a basic change. Overall, the rise of private space ventures is part of the story of how individuals and other substate actors are pushing into areas that before could only be contemplated by governments. 

Like I wrote back in July: it’s a fun time to be a space lawyer.

Kristen Boon of Seton Hall Law School (and occasional Opinio Juris guest-blogger) has sent in the following call for questions/ topics for a roundtable at International Law Weekend entitled Overlapping Threats / Overlapping Jurisdictions: International Law in the Face of New Threats to Peace and Security. She writes:

Climate change, swine flu, the global financial crisis, and drug trafficking pose significant new threats to international stability. Do they constitute threats to peace and security as a matter of international law, and if so, which organizations will ultimately exercise jurisdiction over these growing challenges of globalization? Do existing global bodies – the UN Security Council, World Health Organization, the World Bank – have the power to respond decisively and effectively? If so, why? Will the private sector, or regional, economically driven entities, such as the G20, emerge as the dominant decision makers?

Please join us to explore these questions, and more, in a roundtable discussion at the 2009 International Law Weekend on Friday Oct. 23 at 2:15pm at Fordham Law School with Amb. Christian Wenaweser (Amb. of Leichtenstein to the UN), Prof. Benedict Kingsbury (NYU Law), Prof. Stephen Marks (Harvard School of Public Health), and Mr. Vikram Raghavan (World Bank).

What do you want to know?

Please email questions in advance to: Prof. Kristen Boon: boonkris@shu.edu.

While I agree with Julian that the interplay of law and politics on questions of statehood can lead to difficult questions, I think his declaration that “we still don’t know when a state is a state,” does more to obscure the issues than actually give a clear picture as to how law and politics affect each other. First of all, Julian is really talking about one specific set of circumstances: contested secessions. I’d like to expand on his post a bit and consider some of the issues.

I think Julian started-off on the wrong foot by asking:

Are the two breakaway sections of Georgia (South Ossetia & Abhkazia) states? If not, why is Kosovo a state?

Formulating the question this way makes it seem that there is a single repository of what is or is not a state. But of course that is not the case: each existing state individually chooses to recognize (or not recognize) other entities as states. To the United States, Kosovo is a state. To Russia, it is not. To Russia, South Ossetia is a state. To the United States, it is not. (That’s the short answer to Julian’s questions.)

It is not that international law is unable to define what is or is not a state, it is that the process of whether or not a particular state actually chooses to recognize another entity as a state is intertwined with politics. This isn’t the conclusion, it’s just the starting point…

The following was sent to us by the American Branch of the International Law Association:

The American Branch of the International Law Association will hold its annual International Law Weekend, in conjunction with its 88th Annual Meeting, in New York from October 22-24, 2009. Registration is free for students, members of the American Branch, and cosponsoring organizations (including the ABA Section of International Law and the American Society of International Law); for others, the registration fee is $75.00. To register, visit www.ila-americanbranch.org.

The theme for the conference is “Challenges to Transnational Governance.” The plenary session for the conference and the opening reception will take place on Thursday, October 22, at the Association of the Bar of the City of New York, 42 West 44th Street in New York City. The opening session will focus on efforts to reform the United Nations Security Council, including the initiation of intergovernmental negotiations in March of this year. Confirmed participants include: the Deputy Permanent Representative of the Mission of the United States to the United Nations, Ambassador Alejandro D. Wolff; the Permanent Representative of the Mission of Sierra Leone to the United Nations, Ambassador Shekou M. Touray; and Professor Joseph E. Schwartzberg of the University of Minnesota. The panel’s moderator will be Professor Jose Alvarez of Columbia University Law School.

On Friday and Saturday, the conference’s venue shifts to Fordham University School of Law, 140 West 62nd Street in New York City. The conference schedule includes thirty-three panels, traversing a wide spectrum of contemporary international law, including international criminal law, human rights law, international environmental law, international economic law, commercial law, and trade law. Several of the panels during these two days focus on the conference’s theme of transnational governance, including “The Contribution of the International Law Commission to Transnational Governance,” “Transnational Governance/Regulation in Global Competition Law Enforcement, “Democratic Process in International Law: State Practice and Non-State Actor Access,” “Transnational Legal Orders: International Trade Regimes and Domestic Regulatory Policy,” and “The Role of International Environmental Law in Transnational Governance.” The keynote speaker at the annual luncheon on Friday, October 23, at 12:30 p.m., will be Lucy Reed, who will speak on the topic “Not-So-Fine Lines in Transnational Governance: Blurring of Public and Private in the International Legal Order.” Ms. Reed is a partner with Freshfields Bruckhaus Deringer LLP, co-head of its global arbitration group, and President of the American Society of International Law.

On Friday evening, the Annual Gala Reception will be hosted at the residence of the Deputy Permanent Representative of the United Kingdom to the United Nations, 510 Park Avenue, 11A in New York City.

Several organizations are cosponsoring the American Branch’s ILW 2009:

• American Bar Association Section of International Law
• American Society of International Law
• American University, Washington College of Law
• California Western School of Law
• Canadian Bar Association
• Customs and International Trade Bar Association
• Debevoise & Plimpton LLP
• Federalist Society
• Fordham University School of Law
• Freshfields Bruckhaus Deringer LLP
• The George Washington Law School
• Hofstra University School of Law
• ILSA Journal of International and Comparative Law
• Leitner Center for International Law and Justice
• Oxford University Press
• Seton Hall University School of Law

The International Law Students Association is joining the American Branch in organizing ILW 2009.

Peggy and Julian will be on a Friday panel “Are We Still Allowed to reject Transnational Norms;” I’ll be on a Saturday panel called “Challenging Territorial Sovereignty: Secession, Autonomy or Status Quo: Kosovo, South Ossetia, Abkhazia, Moldova, and Tibet.” If you come by to ILW, please stop by to say hello! (The full list of panels, by the way, is available in a link from this page.

I just wanted to note that I have posted to SSRN The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia, which is part of the special issue of the Chicago Journal of International Law about great power politics to which Ken has referred a couple of times. Here’s the abstract:

This Article, written for a special issue of the Chicago Journal of International Law concerning great power politics, seeks to elucidate whether and how international law shapes modern diplomatic discourse and, in particular, how “great powers” use international legal arguments as part of their diplomatic strategies. I use one topic area — arguments over self-determination — and two cases — Kosovo and South Ossetia — to explore this relationship between the language of law and the practice of politics. I argue that international law serves as both a vocabulary and a grammar for diplomacy. International law is a vocabulary in that it defines the words that can or cannot be used in diplomatic discourse, the terminology that is or is not acceptable. Similarly, international law provides a grammar for international relations by setting the rules by which words fit together — essentially, how ideas can be expressed. For example, “we will use our right to attack you” does not easily fit into the grammar of international law or international politics (barring some questionable readings by the Bush Administration). By cabining what can be said in international relations, international law defines norms, shapes expectations, sets the boundaries of what can be legitimized and, ultimately, can make it more or less likely that certain state actions will be successful.

Section II of this Article briefly sets out the background of the Kosovar and South Ossetian conflicts. Section III is a quick primer on the evolution of the concept of self-determination and its at-times difficult coexistence with the concepts of sovereignty and territorial integrity. Section IV turns to the analysis of how legal argumentation was used by Russia, the US, and the EU in the cases of Kosovo and South Ossetia. Although I note the relative strengths and weaknesses of the arguments, I am less interested in who was right or wrong as opposed to what strategy was used (if any) in deploying the language of international law. I am especially interested in how Russia, in particular, has used the language of international law as a tool of public diplomacy in an attempt to spin the perceptions or “control the narratives” related to both Kosovo and South Ossetia. Finally, Section V considers how the rhetorical use of international legal argumentation goes beyond managing perceptions and can actually affect the evolution of the substance of international law.

On related news, this week the EU will release its much-anticipated report on responsibility for the Russia/Georgia conflict over South Ossetia. Also, the public hearings for the ICJ’s Advisory Proceedings on Kosovo have been scheduled to begin on 1 December.  Stay tuned…

CNN has the story:

“Where do you live?”

Seems like a simple question, doesn’t it?

But the answer is not clear-cut for everyone. Take people who live in Srinagar, the capital of Kashmir, which is wedged between India, Pakistan and China. India and Pakistan have gone to war repeatedly over the disputed territory.

Technically, it’s “Indian-administered.”

But on Facebook, it’s simply in India.

 Questions like this have been causing Facebook and other social networking sites a headache, because in terms of reactions from current and potential customers, it is “damned if you do, damned if you don’t.” CNN explains:

Facebook recently changed its listing for the Golan Heights — which Israel captured from Syria in 1967 — so users there could choose to say whether they live in Israel or Syria.

It was responding to pressure from a pro-Israel group called HonestReporting — and from Facebook users who set up a group on the site itself called “Facebook, Golan Residents Live in Israel, not Syria.”

“It is not for Facebook to decide the national origin of Golan residents,” the group says on its page.

Facebook may have pleased pro-Israel users there by giving them the choice to say where they live, but not all Syrians were happy about the change.

“I think Facebook sort of shot itself in the foot to make it optional for the Golan to say this is part of Israel,” said Ammar Abdulhamid, a Syrian scholar based in the United States.

“This is against international law,” he said.

 It should come as no surprise to readers of this blog that…

At the risk of being told again that I am writing in “literary Klingon,” I want to return to the issue of virtual worlds and their real world implications. This time, a virtual world is being considered as a way to assist in the management of an international organization, namely NATO. According to Danger Room:

NATO’s got a new plan for training up employees and running the alliance’s day-to-day business: create a virtual world.

That’s right: The organization is after software models that would simulate its real-world headquarters …, as well as NATO’s North American command center, the Headquarters Supreme Allied Command Transformation in Norfolk, Va. The 3D programs would be used for training purposes and meetings, and NATO hopes they’ll improve staff communication and productivity, while circumventing “the inhibitions to collaboration posed by physical distance and time zones.”

See also this post at CTLab. It’s an interesting idea that a virtual headquarters in cyberspace could be used to ease the coordination problems of an international organization.  On the one hand, this sounds like a really fancy version of conference calling, but I think NATO is hoping for something much more elaborate. Consider the following from Danger Room (emphasis added):

This isn’t the first time NATO has toyed with virtual training programs. In February, they requested a computerized replica of Afghanistan, complete with data on Afghan economics, politics and culture, to be used by war planners in decision-making considerations. And two years ago, the Navy asked for the same thing, but with Iraq as the targeted 3D nation.

Of course, mapping an entire country is a much bigger challenge than replicating a few command stations, but NATO’s still got lofty goals for the new training program. They want a world that’s physically realistic and real-time, and continues to run even when users aren’t “in-world.” Plus, each staffer will be represented with an avatar.

I am more sanguine about the use of virtual worlds as a means to aid workflow in a multinational organization than as an effective tool in politico-economic planning. While the first is essentially a complex communications technology, the second is actually a political model, as dependent on assumptions and interpretations as any other political analysis. These two uses of virtual worlds are thus quite different, one is largely content-neutral, the other is all about the content. In the latter case, the virtual world is likely to only work as well as our understanding of the real one.

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…