Author Archive for
Chris Borgen

Hackers’ Bazaar: the President’s NSA Speech and the Market for Zero-Day Exploits

by Chris Borgen

All Things Considered ran an interview this past Monday with Alex Fowler, the chief privacy officer of Mozilla (developer of the Firefox web browser), stemming from a blog post Fowler had written critiquing President Obama’s speech last week concerning NSA activities. When asked about the “most glaring reform needs” that were not addressed in the President’s speech, Fowler said:

right now, we have a policy approach in Washington which is focused on not closing security holes but actually [on] hoarding information about security backdoors and holes in our public security standards and using those then to exploit them for intelligence needs. In our perspective, and I think certainly those of your listeners – as you think about the news related to Target data breaches and breaches with Snapchat and other common tools that we use every day – that what we really need is to actually focus on securing those communications platforms so that we can rely on them. And that we know that they are essentially protecting the communications that we’re engaged with.

This relates to the market for so-called “zero-day exploits,”  where the U.S. government pays hackers for information about holes in software security that its intelligence and law enforcement agencies can then use for surveillance. (The market for zero-day exploits is described in greater detail in this previous post.) The U.S. also pays the sellers of these exploits to keep the holes secret, not even warning the company that has the security hole, so that the exploit may remain useful to the U.S. government for as long as possible. Unfortunately, this also means it will remain open for criminal hackers who have also discovered the hole.

The injection of U.S. government funds has transformed a formerly loose, reputation-based, market into a lucrative global bazaar with governments driving up prices and the formation of firms with business models based on finding and selling exploits to the U.S. and other governments. Although cash-rich companies like Microsoft are responding by trying to out-bid state actors for information about zero day exploits in their own products, the money in the market has shifted from rewarding security into incentivizing insecurity

(Continue Reading)

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

When the “Things to Come” are Already Here, Where Should International Law Go?

by Chris Borgen

Novelists such as H.G. Wells and George Orwell used fantastic fiction to describe their world as it was and to imagine, to use Wells’ title, “The Shape of Things to Come.” This past summer I wrote a post on what current science fiction can bring to international law. I mentioned various books that, though fantastic, illuminated topics related to international law, international relations, or national security.

Well, according to my tricorder, I mean, the newsfeed on my smartphone, this past week reality just got a little more science fictional with the revelations of US intelligence agents roaming around in World of Warcraft and Second Life, on the hunt for any terrorist who might be using these virtual worlds to communicate, plot, and even train.

For all the surprise this has elicited, this isn’t the first time we’ve seen virtual worlds (weirdly) interact with the very real world of international relations. There was that time that the Green Lantern Corps had to patrol a virtual refugee camp that had been built by human rights activists in Second Life’s Sudan in order to protect it from vandals.  Or that proprietary financial system owned by a Chinese company that would support financial transfers and investments across the economies of different virtual worlds.  Or that time that NATO commissioned an interactive model of Afghanistan for planning and training.  And then there’s the Swedish Embassy in Second Life

So, Snowden reveals that U.S. intelligence agents are posing as, let’s say, warrior elves and they’re running around on quests in World of Warcraft looking for al Qaeda organizers.  I’m just not all that surprised.  It is a bit amusing, though, that there ended up being so many intelligence officers online that they had to set up a “deconfliction group” to keep track of who was really whom, so that some Jack Ryan posing as a warrior elf wouldn’t report a wizard as being an al Qaeda operative when that wizard is actually a US agent posing as an al Qaeda operative who’s avatar is a wizard. This truly is “The Looking Glass War.”

These are the types of scenarios one sees in “political science fiction.” Sci-fi bloggers have remarked that the Snowden revelations are not that different from plot points in Neal Stephenson’s novel REAMDE, one of the books I mentioned in my post this summer.  And another author that I wrote about, Charles Stross, has decided to not write the third book in his near future cybercrime trilogy because the present is already arriving at his imagined future. Here’s how Stross put it:

At this point, I’m clutching my head. “Halting State” wasn’t intended to be predictive when I started writing it in 2006. Trouble is, about the only parts that haven’t happened yet are Scottish Independence and the use of actual quantum computers for cracking public key encryption (and there’s a big fat question mark over the latter—what else are the NSA up to?).

I’m throwing in the towel.…<snip> …The science fictional universe of “Halting State” and “Rule 34″ is teetering on the edge of turning into reality. Meanwhile, the financial crisis of 2007 forced me back to the drawing board for “Rule 34″; the Snowden revelations have systematically trashed all my ideas for the third book.

Our colleagues in the world of architecture and design have “design fiction”: films and websites devoted to as-yet non-existent objects as a means of thinking about the possibilities of design and engineering and their relationship to society.  Here are three very different examples (noted by Tobias Revell in the previous link): “New Mumbai,” “Microsoft’s Productivity Future Vision,” and “Post CyberWar.”

As lawyers, we spend much of our time looking at precedent, at the lessons of history.  We cannot stop doing that, as history is the great teacher. But we also have to remember that with every passing second, the future arrives. And, like the writers, the designers, the engineers, and the architects, we have to imagine what things may come, and how our work may shape the future and how the future may shape our work.

Because law is itself a disruptive technology.

More on Ukraine: All Normative Geopolitics is Local

by Chris Borgen

As the political crisis in Ukraine over the government’s decision not to sign an Association Agreement with the EU passes its second week, this conflict and the positioning over other Russian “Near Abroad” countries (especially Armenia, Moldova, and Georgia) are good examples of the interrelationship of norms and geopolitical strategy.

The situation has been largely described in terms of Putin’s reaction to these countries planning on signing new agreements with the EU.  While that is an important part of the story, it is only part. As I described in previous posts (1, 2), this is also very much a story of domestic disputes over norms, ranging from domestic laws to cultural practices.

And, closely related to this latter aspect of normative geopolitics, is the importance of domestic politics in country that has significant ideological divisions.

This might actually be another iteration of Ukraine’s strategy of balancing both Russia and the EU by playing both sides and committing to neither. Political analyst Nicu Popescu has written:

In fact, Kiev chose not to choose at all and tried hard to maintain the status quo in Ukraine’s foreign and domestic policies. Yet in his bid to buy time, President Viktor Yanukovich inadvertently precipitated the biggest crisis of his presidency to date.

Consider in relation to this the New York Times report that “[a]t virtually the same time” that Ukraine cabinet of minsters announced suspension of preparations to further integrate with the EU:

President Viktor F. Yanukovich, who was on a visit to Vienna, issued a statement saying, “Ukraine has been and will continue to pursue the path to European integration.”

In a move emblematic of Ukraine’s often inscrutable politics, Mr. Yanukovich barely acknowledged the developments in Kiev and, responding to a reporter’s question about the pacts with Europe, said, “Of course, there are difficulties on the path.”

Was this an attempt to soften the blow that Ukraine is turning its back on the EU or some complex tacking to serve an immediate need (holding off Russian gas embargoes as the winter sets in) while deferring a longer term goal (increasing European integration)? Even Kiev-watchers seem a bit befuddled.

But that’s politics in a systemic borderland

(Continue Reading)

The Protests in Ukraine and Normative Geopolitics

by Chris Borgen

One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

Russia, Moldova, and the EU: Realpolitik as Normative Competition

by Chris Borgen

Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR.  Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting aside years of negotiations with the EU and, under considerable pressure from Moscow, announcing that it would join the Russian-led Eurasian Customs Union. While the New York Times article focuses on the foreign policy and economic issues involved, these situations also exemplify the importance of law (both domestic and international) in international relations, because high politics in the “near abroad” is not about the formal acquisition of territory, but the adoption of norms. (For more on this theme see, also, this.)

The New York Times article uses the case of Moldova as an example of how Russia pressures its neighbors: threatening energy cut offs, banning key exports from Moldova, even bringing religion into play. In the case of Moldova, Russia also supports a separatist group that has seized control of Transnistria, the eastern-most section of the country. (As readers of this blog may know, I was part of a group of lawyers from the NY City Bar who wrote a report on the legal issues related to the Transnistrian conflict and, last year, part of an Open Society Foundations supported study comparing the conflicts in Moldova and Cyprus.)

But the heart of the matter is whether Moldova will become more fully integrated into “European” institutions (the EU, first and foremost) or reintegrate with revamped “Russian” institutions (the Eurasia Customs Union, for example). At times a state can be on one side or another of a normative border: Poland is part of the European normative order, Belarus is in Russia’s. In such cases, when normative boundaries coincide with national boundaries the situation is relatively clear. But the issue of which way Moldova will face is still being contested, somewhat within Moldova (particularly by the Transnistrian separatists) and more so by Russia. Thus, Moldova and certain other states in Russia’s near abroad (such as Ukraine) are borderlands between two normative systems, each state containing aspects of both.

When normative systems overlap and jostle within a country, the result can be normative friction. This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory, which international organizations a state may join, the recognition of national borders, and issues of non-intervention. Any issue that seems to favor one set of normative system over another can become symbolic of a larger struggle. Even when you put up and take down Christmas decorations can turn into a political crisis.

Although this has been the case in Moldova, Armenia, and Ukraine for years, Russia is increasing its pressure now because… (Continue Reading)

From Apology to Bazinga!: International Legal Rhetoric in Obama’s Speech and Putin’s Op-Ed

by Chris Borgen

In From Apology to Utopia, Martti Koskenniemi  mapped how international legal rhetoric can be used to “apologize” for power—to provide a fig leaf over the rude exposure of realpolitik—and how it can be utopian—making rules for a world that does not actually exist.  This week we have had two examples of international law and high politics: President Obama’s speech on Tuesday and Vladimir Putin’s op-ed in today’s New York Times. And while many in the U.S. seem most concerned about Putin’s apparent skepticism toward American exceptionalism, I suggest that more attention should be focused on what his op-ed and President Obama’s speech show about how Russia and the U.S. use international legal rhetoric in pursuit of their goals.

As President Obama’s speech tried to make the case for U.S.-led military action in Syria (if the current diplomatic initiatives fail), Vladimir Putin’s op-ed argued why the U.S. should not intervene. In looking at these two texts—attempts by an American President and a Russian President to speak to the American public, and, at times, to the world—we can compare and contrast how the language of international law is used by both leaders.

Putin’s argument plays on American fears and worries but it is framed in the rhetoric of international law. There are some scare lines, such as: “A strike would increase violence and unleash a new wave of terrorism.” There is a description of a “reeling” Afghanistan where “no one can say what will happen after international forces withdraw.”  And, he adds, don’t forget the divisions in Iraq and Libya.  It is not in “America’s long-term interest” to have U.S. military intervention be “commonplace.” Well, that last part is true enough.

There are also some parts that are a bit hard to swallow, like his implying that his policy is based on a concern over the security of Israel or blaming the ongoing civil war on the West supplying arms to the opposition (which staying silent on Russia’s arming of the murderous Assad regime). I half-expected Putin to follow-up some of his arguments with “Bazinga!”

But all of these various points, be they persuasive or not, are placed in a frame of international legal rhetoric.  Putin’s op-ed is an excellent example of Russia’s strategy of using the language of international law to try to persuade publics around the world of the wisdom of its own foreign policy, while implicitly or explicitly critiquing the policies of other states. Near the beginning of his essay, Putin explains… (Continue Reading)

What Does Putting Syria’s Chemical Weapons Under “International Control” Mean? (And Some Thoughts on Russia’s Use of International Legal Rhetoric)

by Chris Borgen

With the focus now on the Russian proposal to bring Syrian chemical weapons under “international control,” questions that remain include how would this actually work? Who would take control?

One likely participant in the implementation would be the Organisation for the Prohibition of Chemical Weapons (OPCW), the implementing body for the Chemical Weapons Convention (CWC).  From the OPCW website:

As of today the OPCW has 189 Member States, who are working together to achieve a world free from chemical weapons…

To this end, the Convention contains four key provisions:

1. destroying all existing chemical weapons under international verification by the OPCW;

2. monitoring chemical industry to prevent new weapons from re-emerging;

3. providing assistance and protection to States Parties against chemical threats; and

4. fostering international cooperation to strengthen implementation of the Convention and promote the peaceful use of chemistry.

See their annual reports here.

Although Syria is not a signatory to the CWC, given the OPCW’s expertise, it is a fair assumption that they would be involved in some capacity in any international control of Syria’s chemical weapons.  The OPCW has already been involved in attempts to address the Syrian crisis: the UN-led group of monitors that investigated the chemical weapons attack in Damascus primarily consisted of OPCW technical experts.

As for the new proposal… [Continue Reading]

Peace Palace 100: Great Powers and Common People in a Century of War and Peace

by Chris Borgen

[Travel and other expenses related to my participation in the "100 Years Peace Palace" program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

August 28th marked the 50th anniversary of Martin Luther King Jr.’s “I Have a Dream” speech. It was also the 100th anniversary of the completion of the Peace Palace at The Hague. Two dreams from two eras. The pursuit of these two related dreams—for racial and economic justice within the U.S. (and other countries) and for the peaceful resolution of disputes between countries—are stories in which citizen activism played an important role in framing the issues and options for political elites.

This idea of the interconnection of Dr. King’s vision with those of the peace activists who played a part in setting the stage for the Hague Conferences of 1899 and 1907 and the subsequent construction of the Peace Palace and its institutions was a theme that was noted throughout the commemorations at The Hague.  Perhaps nowhere more so than in the celebration of the work of Bertha von Suttner, an influential author and peace activist who was the only woman to attend the 1899 conference.

In a speech delivered at “Pro Concordia Labor,” an event honoring von Suttner organized by Professor Hope May, US War Crimes Ambassador Stephen Rapp said:

…that 1899 conference and its results would not have been achieved without the citizens’ movement that made it happen.  Grotius had been an advisor to princes, and famously for a time was imprisoned by one of them.  They ruled the world of the 17th Century.  But by 1899, citizens had the power to affect the decisions of governments, and a citizens’ movement led by Bertha von Suttner, demanded the convening of the Hague conference and motivated its decisions.

Bertha von Suttner went on to win the Nobel Peace Prize in 1905. At the centennial festivities at the Peace Palace this August, she also became the first woman to have a bust in the Peace Palace.

Ambassador Rapp had come to the celebrations at The Hague directly from an annual meeting of the chief international prosecutors of the various international tribunals sponsored by the Robert H. Jackson Center and other institutions, that takes place at the Chautauqua Institution in western New York. In doing this, he noted the historical link to von Suttner:

On leaving the sessions this year, I discovered that Bertha von Suttner had come to Chautauqua in the summer of 1912 to speak in the same amphitheatre before a crowd of thousands…  It is reported that von Suttner spoke at Chautauqua about the need to resolve disputes between nations in court and not on the battlefield, and about how the Permanent Court of Arbitration would be a forum for such peaceful settlements.  Back here in The Hague, a palace to house that court was rising.  Now 100 years later we honor von Suttner, and the civic activism that can move nations.

It may seem strange to celebrate the centennial of the Peace Palace when today’s great powers are at odds over what to do in the face of carnage in Syria… [Continue Reading]

TEDxHagueAcademy: September 9

by Chris Borgen

For a number of years now, I’ve enjoyed watching TED talks  and TEDx events on a variety of subjects in the realms of science, design, and society. TED may be an acronym for Technology, Entertainment, and Design, but TED talks already go well beyond those topics and tomorrow, September 9, there will be a TEDx event on issues of international justice.

TEDxHagueAcademy will bring together a wide range of speakers on issues of international justice, including  former Acting Solicitor General (and, lead counsel for Guantanamo detainees in Hamdan v. Rumsfeld) Neal Katyal and President of the ICTY Theodor Meron. Other speakers will include activists and artists who are engaged in questions of peace, justice, and reconciliation. For example, Michael Liu, a lawyer from mainland China representing victims before the Extraordinary Chambers in the Courts of Cambodia, will speak on China and international justice, journalist and human rights activist Iduvina Hernandez will talk about the struggle for justice in Guatemala, and filmmaker Faisal Attrache will talk about his documentary on Syrian refugee barbers.

Two of the organizers of this event were also involved in bringing the group of bloggers over to the Hague for the Peace Palace meetings last week, so I got to hear a bit about TEDxHagueAcademy and it sounds like it will be a very interesting and wide-ranging event.

Videos of the TEDxHagueAcademy talks will be available (and archived for later viewing) on its webpage.

More information is available via TEDxHagueAcademy’s Facebook page and there is a Twitter feed, where you can also send questions to the speakers.

Any Questions: The International Criminal Court and the Special Tribunal for Lebanon

by Chris Borgen

[Travel and other expenses related to my participation in the "100 Years Peace Palace" program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

Finishing up my week of meetings and interviews related to international legal institutions at the Peace Palace and the Hague more generally, I will be meeting tomorrow with President Sang-Hyun Song of the International Criminal Court and with Marten Youssef, spokesperson for the Special Tribunal for Lebanon.

As before, I invite readers to submit any questions.

I will have posts in the coming days recapping meetings at the ICJ, the Peace Palace centennial, and other Hague-related topics, as well as these upcoming meetings at the ICC and STL.

Peace Palace 100: Getting Reintroduced to the Permanent Court of Arbitration

by Chris Borgen

[Travel and other expenses related to my participation in the "100 Years Peace Palace" program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

It is a bit surreal to be attending programs commemorating 100 years of the Peace Palace on a day when the news is filled with the possibility of US military intervention in Syria. Kevin and Julian have been parsing through the Syria issues so, for now, I’ll focus on the Hague meetings I have been attending.

For this post, a few snapshots from conversations today with Secretary General Hugo Hans Siblesz and Senior Counsel Sarah Grimmer of the Permanent Court of Arbitration.

The main take-away from the PCA meetings is how rapidly its case-load has increased and changed  in the last ten years. Founded in the 1899 Convention on the Peaceful Settlement of Disputes (“With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a Permanent Court of Arbitration…”), the PCA was largely moribund for about 100 years, overtaken by the Permanent Court of International Justice and then the International Court of Justice in state-to-state dispute resolution.

However, according to its website, the PCA:

has developed into a modern, multi-faceted arbitral institution that is now perfectly situated at the juncture between public and private international law to meet the rapidly evolving dispute resolution needs of the international community. Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.

The PCA actually now has about eighty pending cases, fifty-four of which are investor-state arbitrations. Only eight cases are state-to-state disputes. While the PCA still has boundary cases like the Abyei arbitration or the Ethiopia-Eritrea boundary commission and other state-to-state cases such as the Ethiopia-Eritrea claims commission, the PCA has transformed into being primarily an investor-state dispute resolution mechanism.

Blame it on the BITs. The proliferation of bilateral investment treaties in recent decades caused an increased number of cases, which effected both ICSID and the PCA. While the PCA has a cooperation agreement with ICSID, most PCA investor-state disputes are under UNCITRAL rules and are enforceable under the New York Convention, rather than the ICSID Convention. The differences between ICSID versus UNCITRAL procedural rules, as well as any differences between the New York Convention and  the ICSID Convention (such as in the enforcement of awards or provisions for challenging arbitrators) may drive some arbitrations into the PCA as opposed to ICSID. Moreover, while ICSID publishes a list of all of its investor-state cases, the PCA does not. (This may, of course, make the PCA more attractive to parties who want to settle their disputes in private.)

Last August, Luke Eric Peterson observed in the Kluwer Arbitration Blog that in many cases the decision to go to ICSID or the PCA may be determined due a combination of contract clauses that are decades old.

Nonetheless, I think that the question of potential regulatory competition between ICSID and the PCA will be an interesting issue to track in the coming years.