A while back, I wrote an article on how states use the rhetoric of international law (specifically self-determination) as part of their broader foreign policy initiatives. Li Hong, the Secretary-General of China’s Arms Control and Disarmament Agency, has an op-ed in today’s China Daily that embeds law-talk (in this case the international law of outer space and multilateralism more generally) in an essay that (I think) is really trying to send a signal about the trend lines of China and the U.S. as space-faring nations.

He starts by invoking international law and multilateralism (in opposition to unilateralism and hegemony):

Since the late 1990s, China, Russia and some other countries have urged the international community to hold multilateral dialogue to prevent weaponization of outer space, and put forward specific proposals for concluding an international treaty to prevent an arms race in outer space.

But the US has been using every reason to refuse negotiating such a treaty for fear that it may restrict it from maintaining and developing its outer space anti-missile system and compromise its space military technology. Some US conservatives are convinced that the US can use its system and resources to maintain its dominance in space and it is unnecessary for it to hold talks with other countries, because they are quite inferior in terms of using space for military purposes. Hence, the US has been emphasizing freedom in the use of outer space. In essence, it wants to establish its hegemony over outer space.

It moves from the law-talk to comparing the current trends in Chinese and American space programs, particularly that

China achieved many a breakthrough in outer space technology such as launching manned space flights, performing [a] spacewalk, establishing the Beidou navigation system [a type of GPS], and conducting anti-satellite and anti-ballistic missile tests. Stung by the financial crisis, the US, however, has been forced to restrict the development of its outer space technology and end its space shuttle program.

And, according to Li, this taints U.S. efforts at cooperation as the

US seeks to cooperate with its allies to integrate and use their resources, which would make up for its lack of investment and help it retain its leadership in space technology. The talks it wants would be focused on its two potential competitors, Russia and China, to regulate and constrain their development and prevent them from challenging US hegemony in space. This is typical Cold War mentality. The US’ eagerness to establish dialogue with China reflects its uncertainty over space security challenges.

Ouch.

As in other instances of using the language of law in the midst of the practice of politics, there’s some careful parsing of language: while China opposes “weaponization” of space, it “has to develop its defense capabilities in space.” Sounds like Ronald Reagan talking about SDI, circa 1984.  And so the essay goes, combining a rhetoric of international legal multilateralism with a sort of space-tech realpolitik, even throwing in some issue linkage along the way (arms sales to Taiwan don’t foster outer space treaties). 

Such use of legal rhetoric in the midst of great power politics can be an attempt to reframe international law or, more modestly, just a try at grabbing the moral high ground. I expect the latter is the case, here. I don’t see any attempts, in this essay at least, to redefine legal concepts. This reads more like an effort to send some signals as to who cares more about international law (China) and who is on a trendline of increasing power (again, China).

One side note:  last year, the Obama administration stated it’s willingness to consider a multilateral space arms control policy. Given that, I look forward to seeing if and how the U.S. responds to Li’s op-ed.

 Hat tip: Spaceports

Humberto Leal is scheduled for execution in Texas on July 7th. A Mexican national, Leal was not notified of his right to consular assistance under the Vienna Convention of Consular Relations. In light of the International Court of Justice’s decision in the Avena case (Mexico v. U.S.), Congress is currently working on legislation to bring the U.S. into compliance with its international legal obligations.  But it won’t be able to do so before Leal’s execution date.  And so the Solicitor General has filed a brief before the U.S. Supreme Court supporting Leal’s request for a stay of execution.  The brief is available here in .pdf. Aside from the SG and members of his office, State Department Legal Adviser Harold Koh and the State Department’s Counselor of International Law Sarah Cleveland are also on the brief.

This is a very important case in regards not only to the VCCR, but also the ability of the Executive to manage foreign affairs. We at Opinio Juris will have more on this later, but for now here is the opening of the brief which frames the issues (citations have been omitted and emphasis added):

The Solicitor General, on behalf of the United States, respectfully files this brief as amicus curiae in support of the applications for a stay of execution. The imminent execution of petitioner would place the United States in irreparable breach of its international-law obligation to afford petitioner review and reconsideration of his claim that his conviction and sentence were prejudiced by Texas authorities’ failure to provide consular notification and assistance under the Vienna Convention on Consular Relations. This Court has made clear that Congress has the constitutional authority to provide a federal remedy that would bring the United States into compliance with its international legal obligation. Legislation has been introduced in the United States Senate, with the full support of the Executive Branch, to achieve this objective. The Attorney General and the Secretary of State have submitted a joint letter to the Chairman of the Senate Judiciary Committee attesting to the government’s strong support for the legislation.

Ensuring that the United States complies with its international obligations regarding consular notification and access serves vital national interests. These interests include protecting Americans abroad, fostering cooperation with foreign nations, and demonstrating respect for the international rule of law. The recently introduced Senate bill that would bring the United States into compliance, however, cannot be enacted before petitioner’s scheduled July 7, 2011, execution date. To permit Congress a reasonable period in which to act on the bill, a stay of execution until the adjournment of the current session of Congress (which must occur by January 3, 2012) is therefore warranted. This Court has authority to grant a stay under the All Writs Act, 28 U.S.C. 1651, and doing so would accord with the Court’s traditional standards and serve compelling national interests.

If you had been thinking about submitting a paper or a panel proposal for the 2012 Annual Meeting of the American Society of International Law but had missed the deadline, despair not!  The deadline has been extended to this Friday, June 24th.  The webpage for submissions is here. And, in case you hadn’t seen it already, this is the theme statement for next year’s Annual Meeting, which is being chaired by Harlan Cohen, Chiara Giorgetti, and Cymie Payne (and I’m on the Program Committee):

Confronting Complexity

Contemporary reality is confoundingly complex: it is marked by rapidly evolving technologies, increasing global interconnectedness, rising population, and deepening understanding of science and the environment. New international actors; changes in social, economic, and political dynamics; a multipolar power structure; and novel security threats only add to the complexity. Amidst this confusion, international law can be a source of order and clarity. It can provide frameworks to peacefully resolve disputes, regulate relations between different actors, and clarify rights and obligations. It can foster technological development and facilitate exchanges of knowledge and goods. It is no surprise that managing global financial crises, protecting global commons, responding to conflicts spilling across borders, and guaranteeing public health and safety have all been added to international law’s purview. In our crowded, connected world, civil uprisings, financial collapses, natural and human-caused disasters are no longer domestic crises: they are global crises.

While international law has at times been quite creative in response to these problems, whether it is fully up to the task remains an open question. International law can actually exacerbate complexity with conflicting or unclear rules, uncertain enforcement, and overlapping and competing jurisdiction. International law must demonstrate the flexibility to embrace new issues, to look beyond the State, and to integrate new players (who may not follow its rules). Transparency, accountability, and participation must be guaranteed in new private regulatory regimes, shorn from State control. The instruments and processes of international law must provide means for scientific evidence to be sifted, understood, and translated into law. And yet, even as it adapts, international law must also remain a force for stability and predictability.

Which problems is international law particularly well-suited to solve? Which seem to defy its regulation? What tools does international law have to manage this complexity? Where are best practices emerging? What has our profession learned in the last half-century? Is law, with its emphasis on rules and stability, conceptually and functionally capable of responding to the challenges of complexity? If not, how should law react? What do experts from outside the legal profession, from technology, finance, counterinsurgency, climate science, and risk, believe law can add? During the 2012 ASIL Annual Meeting we will address these questions and discuss how international law responds to complexity.

Passed along by Tony Anghie:

The Asian Society of International Law will be holding its Third Biennial Conference in Beijing, China, on August 27th and 28th. The topics that will be addressed include human rights, international economic law and private international law, the law of the sea, climate change, disaster management, and the international law relating to security and conflict. A panel will also be devoted to the crucial issue of the teaching and dissemination of international law in Asia. The conference will explore Asian state practice, regional developments, Asian traditions of international law, and the ways in which Asian societies are attempting to formulate and adapt international law to meet their needs and their emerging economies. At the same time, the conference will examine developments in international law more broadly. Both Asian and international perspectives on the selected topics will be explored. The speakers at the Conference will include promising and talented younger scholars and eminent international lawyers from around the world, including scholars, government officials, representatives from international organizations, and private practitioners. Further details regarding the Conference are available at the Asian Society web site: http://www.asiansil.org/ and the Conference web-site http://a10014931063.oinsite.cn/.

Over at the Harper’s Magazine site Scott Horton interviews Laura Dickinson about her new book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Horton begins:

Waging war and engaging in diplomacy would generally be reckoned among the most important powers of any sovereign. Yet as Laura Dickinson argues in her new book, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, America has been delegating these responsibilities to private companies over the past decade, and offering them lucrative contracts in exchange. Dickinson argues that this practice poses a threat to core public values of human rights, democratic accountability, and transparency.

The discussion ranges over topics including the relationship of neoconservative ideology to private military contractor (PMC) impunity, the immunity claims of PMC’s, why JAGs should be given more authority over PMC’s, and Blackwater founder Erik Prince’s new venture raising a mercenary army for the United Arab Emirates, and other important and timely issues.The relationship of international law to PMC’s has been one of Laura’s areas of expertise for a number of years (see, for example, this relatively recent article and, given Erik Prince’s latest shenanigans, it is good to see not only her new book but a wide-ranging interview at Harper’s.

Readers are invited to comment on Harold Koh’s post on the legality of the Bin Laden operation. As always, we expect and anticipate that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm.

The Gottingen Journal of International Law has just made available online its new special issue that focuses on the relationship between resources and conflicts. This issuse is the result of a symposium which was held this past October. The sixteen papers are organized around the four panel themes: (a) resources before, during, and after conflicts; (b) actors of armed conflicts and international law; (c) resources and conflict prevention: access, sharing and regulation; and (d) knowledge as a resource: access, assessment and legal consequences. There is also a keynote from Professor Marie-Claire Cordonier Segger of the Centre for International Sustainable Development Law.

I think this theme is a great way to address the cross-cutting issues related both to conflicts over the use and ownership of resources as well as how various resources can feed conflicts. Congratulations to the editors for putting together an interesting symposium and special issue.

The video is here. No big surprises. Dellinger’s argument is based on the post-9/11 Authorization for the Use of Military Force and that under international law “you can kill enemy combatants.” 

Dellinger explains that drones attacks on other al Qaeda members are legal too. However, regarding drone attacks, I wish he hadn’t said that that there was “a policy judgment” to be made about “how careful you ought to be” about protecting the lives of civilians and non-combatants and contrasting that “policy judgment” with “decisions having to do with the lawfulness of the use of military choice.”  Putting it that way seemingly makes proportionality merely a policy consideration as opposed to an obligation.

For his part, Gergen focused on the moral issues of targeted killing.

Parag Khanna of the New America Foundation has an essay at CNN.com which gave me cognitive whiplash. He tries to set out an argument that the killing of Bin Laden signifies an important evolution in the rule of law. Khanna, however, seems to like the idea of the rule of law without actually wanting to deal with the details of legal rules.

Khanna starts by arguing that

the narrative of the [killing of Bin Laden] must be dramatically shifted away from rhetorical overtones about a “war of ideas” or “struggle for soul of Islam” towards a more neutral and universal appeal to a global rule of law.

But then what Khanna does with the idea of the “rule of law” makes my head snap back. As he sees it, the legal significance of the killing is in part because it was Americans acting in Pakistan:

That it was American counterterrorism operatives who conducted the assassination on the sovereign soil of a foreign country is an even more important marker. Many see the assassination of rogue individuals as a violation of sovereign immunity and even “playing God,” a right that no nation can arrogate to itself. This is false. It is a powerful symbol of our collective evolution that individual perpetrators are targeted for their crimes rather than entire societies punished in wars.

He then criticizes international law for being too, well, legalistic and saying that what is important about the killing is that it wipes away some old notions of sovereignty:

Over the past decade, international law has evolved in such a way as to justify such direct interventions, if only we could act more quickly on the thicket of protocols and deliberations we have invented. The International Criminal Court which oversaw the trial of Serbian war criminal Slobodan Milosevic, has indicted sitting heads of state such as Omar Bashir of Sudan. The Responsibility to Protect (R2P) doctrine, ratified in 2005 by the United Nations General Assembly in 2005, sets forth a process for determining whether the international community can be obligated to intervene to prevent crimes against humanity.

The core principle behind these institutions and treaties is that sovereignty is a responsibility, not a privilege. This applies not only to dictators and terrorist fugitives, but to the governments that give them safe harbor.

Let’s set aside for the moment that R2P is anything but settled in terms of either process or content and that General Assembly resolutions are not binding. A bigger problem is trying to tie together the killing of Bin Laden, the ICTY (not the ICC), and the NATO bombing in Kosovo in a single normative package. This brings together examples with more disparities than commonalities.

And when it comes to applying legal principles, details and distinctions matter. Consider this statement:

The arguments against political assassinations hinge on an overly legalistic commitment to sovereignty and a misplaced fear of retribution. It is precisely the accretion of a body of international humanitarian law that justifies interventions from Kosovo to East Timor and assassinations of figures like Osama bin Laden.

That sounds like the work of someone looking for a “big think” tagline and misunderstanding the law regarding assassination and targeted killing along the way. Lawyers try not to overturn old paradigms when current rules are perfectly adequate. In this case, Khanna was just looking at the wrong rules. I much prefer Jordan Paust’s  argument, set out in a brief comment to the post in this link (and at greater length in this article):

As international law experts, we should recall that the killing of bin Laden was permissible under Article 51 of the U.N. Charter, which allows the U.S. to target the leader of al Qaeda in self-defense in response to ongoing armed attacks on U.S. military personnel and other nationals in Afghanistan across the porous border areas with Pakistan. The U.S. does not need the consent of Pakistan in order to engage in self-defense actions against those in charge of attacking U.S. nationals, but apparently had consent in this instance. This was not simplistically a “law enforcement” operation, but a self-defense and law of war operation, especially since the de facto theater of war has migrated to parts of Pakistan and to the very spot where bin Laden had been directing attacks through his couriers.

Greg Mc Neal points to a similar argument made by John Bellinger, with the added point of Pakistani consent.

No need to proclaim the end of sovereignty or the rise of some new paradigm. Just mind the details and do the legal analysis.

That’s more than enough.

Tomorrow, the Center for International and Comparative Law (CICL) of St. John’s University School of Law will have its inaugural symposium. Peggy and I are CICL’s Co-Directors, and we are looking forward to what we hope will be a great kick-off.

The symposium, entitled Challenges to International Law, Challenges from International Law: New Realities and the Global Order, is co-sponsored by the American Society of International Law and the St. John’s Journal of International and Comparative Law  (the Center’s new online journal). Presenters will include  Michael Mattler, the Minority Chief Counsel of the United States Senate Committee on Foreign Relations; Joseph Cassidy, the Director of Multilateral and Global Affairs in the State Department’s Bureau of Democracy, Human Rights and Labor, Ruth Wedgwood of SAIS, Opinio Juris co-blogger Roger Alford (which reminds me… ) and many other great speakers.

The keynote will be delivered by Donald Donovan of Debevoise & Plimpton. Donald, who is the President-elect of the ASIL, will also be joined by David Caron, the current President of the ASIL, and Peter Trooboff, a past President of the ASIL in a closing roundtable with Mattler on the question of American exceptionalism and the future of international law.

Full agenda after the jump…

“Libya”and “humanitarian intervention” are being used more and more often in the same sentence.  Over at Ratio Juris, Patrick O’Donnell has a round-up of  blog posts and opinion pieces concerning humanitarian intervention and the situation in Libya. Patrick’s post is especially helpful for anyone trying to get up to speed on this issue as it includes a bibliography on humanitarian intervention, more generally.

Moreover, Anne-Marie Slaughter, recent head of Policy Planning at the State Department and now back at Princeton, has tweeted a call for intervention in Libya. Here’s the opening of a post about it from The Cable:

Former State Department Policy Planning Chief Anne-Marie Slaughter used her brand-new Twitter account on Thursday to call for international intervention on behalf of the Libyan people.

“The international community cannot stand by and watch the massacre of Libyan protesters. In Rwanda we watched. In Kosovo we acted,” Slaughter tweeted, in one of her first ever entries. She confirmed to The Cable that the Twitter account is genuine.

Stay tuned…

What will daily life in Jerusalem be like a century from now? This is the theme of the Jerusalem 2111 International Animation Competition, organized by the Association of Planning and Conservation- Jerusalem (Beit Hamodel).  The blog io9 has a post with links to some of the submissions, which include visions of a depopulated Jerusalem under UN control, what looks like a Marxist revolution, a floating city, and the winning entry “Secular Quarter #3,” embedded above. A while ago, I blogged about African cyberpunk and what we may learn from science fiction from lesser developed countries. Similarly, the Jerusalem 2111 entries (though not necessarily from LDC’s) are examples of how much can be said with very short films of speculative fiction. Great conversation starters.