William Gibson (appropriating Gertrude Stein’s bon mot about Oakland, California) said of cyberspace: “there is no there, there.”  While this captured the feeling of Gibson’s fictional cyberpunk protagonists, it obscures all the physical “theres” that make cyberspace possible.  A student post at Infranet Lab called Re-Link:The Physical Network of Data is a quick visual primer on all the stuff of cyberspace that we sometimes forget about: trans-oceanic submarine cables, landing points, and so on.

The author notes that the U.S. is the de facto physical hub of the Internet, whereas “you can count the number of lines feeding Africa on one hand.” However, the author argues:

With cheap land, availability of natural resources and proximity to Asia, Europe and South America, Africa can provide fertile grounds for international data center activity. Big Internet companies such as Microsoft, Google and Yahoo, whose data center activity is mostly concentrated in North America and Europe, can start investing in the internet infrastructure of African countries by providing better connections, and in return can be allowed to establish data centers in areas with little economic activity. These companies can take on an active role in shaping the information economy of Africa by not only providing internet connections, but also by providing jobs and training. All this cannot be achieved by corporate colonization, but through an active and dedicated participation in the growth of the information economy of the region.

He also discusses making Africa the new hub of the internet, due to its physical location.  While increasing the connectivity of Africa to the Web is important to assist development in Africa, we need, however, to keep in mind that that is not the same thing as deciding to place in Africa key infrastructure for the connectivity of the Americas to Europe to Asia. At that point, the risk of political instability becomes a key issue.

Looking at the issues of the physical infrastructure of cyberspace from a different angle, a 2008 post on Infranet Lab, Rewiring (Tele)Geography, noted one national security implication of the physical infrastructure of cyberspace:

The NY Times recently reported on the tendency of countries to redirect internet trafficaway from the United States. Intelligence agencies have previously been gifted with the convenience of a large majority of international internet usage eventually finding its way through US cables. This trend has been reversing in the last 5-8 years, as the US falls woefully behind up-to-date submarine cable updates, and as increased intraregional networks offer an ability to keep terabytes more local.

That post closed with the following observation:

What appears initially as (invisible) lines on a global map suddenly can be read as the very modern day gates and thresholds that assert the power, economic vitality, cultural credentials driving competitive urbanism. Villages such as Tarifa, Spain, strategically positioned as a constricted data threshold between the Atlantic and Mediterranean hubs, become a key information harbor at the scale of the data intraregion.

In the end, these posts with their maps showing webs of connections-thick in some places, thin in others-remind me of a more recent William Gibson aphorism, which is perhaps more apt than the one I began with:

The future is here. It’s just not evenly distributed.

Peggy has already posted on this, so this is just a reminder that ILW 2010 starts today (October 21) in New York City. The website of the American Branch of the International Law Association has this description:

On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law Weekend (“ILW”) in New York, in conjunction with the 89th annual meeting of the American Branch.

ILW 2010 will bring together hundreds of practitioners, professors, members of the governmental and non-governmental sectors and students. It will feature numerous panels, distinguished speakers, receptions, and the Branch’s annual meeting. ILW 2010 will take place at the Association of the Bar of the City of New York on October 21, 2010, and at Fordham University School of Law on October 22 and 23. The overall theme of ILW 2010 is “International Law and Institutions: Advancing Justice, Security and Prosperity.”

The global strategic and financial turmoil of the last several years has created unprecedented challenges and opportunities for international law and institutions. ILW 2010 will address the role of international law and institutions in reducing conflict, promoting security, fostering human rights, protecting the environment, facilitating trade and investment, and resolving public and private international disputes. Panels will examine subjects such as the extent to which treaties currently under negotiation or consideration would further these objectives, and the operation and effect of international organizations, international courts, and arbitral institutions on the global legal order. One of the objectives of ILW 2010 is to promote a dialogue among scholars and practitioners from across the legal spectrum. Panels at past ILWs have also addressed a wide range of topics related to public and private international law.

Additionally, on Saturday, October 23rd, beginning at 2:00 pm, the American Branch will launch a half-day program of speakers, break-out sessions, and other events designed to help law students gather information about career paths in different areas of international law and to gauge the future demand for lawyers with expertise in different aspects of private and public international law.

Full program .pdf is here.

I’ll be speaking on the Kosovo panel on Friday morning. I hope to see you there!

A while back I wrote a sort post on the violent political economy of rare earth elements, also known as REE’s. A recent Congressional Research Service report (.pdf is here) describes the central (and until recently under-reported) role of REE’s in the modern economy and national security infrastructure:

Some of the major end uses for rare earth elements include use in automotive catalytic converters, fluid cracking catalysts in petroleum refining, phosphors in color television and flat panel displays (cell phones, portable DVDs, and laptops), permanent magnets and rechargeable batteries for hybrid and electric vehicles, and generators for wind turbines, and numerous medical devices. There are important defense applications, such as jet fighter engines, missile guidance systems, antimissile defense, and space-based satellites and communication systems.

The problem is that most rare earth mining takes place in China and, as described in my previous post, the industry is dominated by criminal gangs. The CRS report notes that:

While more abundant than many other minerals, REE are not concentrated enough to make them easily exploitable economically. The United States was once self-reliant in domestically produced REEs, but over the past 15 years has become 100% reliant on imports, primarily from China, because of lower-cost operations.

Moreover, according to one tech industry website,

China has warned that its own industrial demands could compel it to stop exporting rare earths within the next five or 10 years.

Although CRS believes that global reserves are sufficient to meet future demands, the concern is the power that China may have in the short to medium term with its domination of the REE market. Today’s New York Times notes that China has started using REE embargoes in its diplomatic relations with Japan:

Late last month, amid a diplomatic spat with Tokyo, China started to block exports of certain rare earths to Japan.

The shipping ban was still in effect on Monday evening in Japan, an industry official said, though a trickle of shipments seemed to be seeping out as a result of uneven enforcement of the ban by customs officers at various ports. China has allowed exports of Chinese-made rare earth magnets and other rare earth products to Japan, but not semi-processed rare earth ores that would enable Japanese companies to make products.

The cutoff has caused hand-wringing at Japanese manufacturers, from giants like Toyota to tiny electronics makers, because the raw materials are crucial to products as diverse as hybrid electric cars, wind turbines and computer display screens.

Late last week, Japan’s trade minister, Akihiro Ohata, said he would ask the government to include a “rare earth strategy” in its supplementary budget for this year.

The main thrust of the article, though, is that Japanese companies have started recycling rare earths from used electronics. In addition to this there is the possibility of increasing domestic U.S. mining of rare earths; however, the start-up costs are daunting  and one independent consultant working with one of the U.S. mining companies “suggested that many U.S. companies have not jumped into the market because China’s state-owned mines keep rare earth prices artificially low,” making market-entry difficult. Hints of a possible WTO issue?

Another speculative possibility is the extraction of rare earths from the moon. This has its own set of problems, technical, legal, and strategic, similar to the issues discussed in a recent article by Richard Bilder.

How will the U.S., China, Japan, and other countries navigate this potential area of resource conflict? It will be interesting to see if any of the countries will attempt to multilateralize the issue or bring in institutional dispute resolution or whether the issue will remain one dealt with through a combination of bilateral deals and fresh investment (both public and private) in new mining ventures.

The Summer 2010 issue of Cabinet has an interview with Professor Christina Duffy Burnett of Columbia about the legal status of islands.  When we’ve written about this issue here on Opinio Juris, we thought of issues relating to how islands can affect claims to underwater resources, or the question of Guantanamo as a legal black hole, or the issue of climate change and sinking islands. But I don’t think we ever discussed the connection between bird poop and imperial history. So I guess it’s about time.

Burnett’s interview has this near the beginning:

This is a very general question, but let’s take a stab at it anyway: do islands matter in the law?

The best way to get at this may be to start with something quite specific. In the summer of 2003, I stumbled on a 969-page typescript treatise which is kept in the library of the US State Department. Flipping through this great leather-bound brick of onion-skin pages, I gradually absorbed that the whole massive volume had been put together in the 1930s by a lawyer working for the US Government who’d been given a killer assignment. Apparently somebody had walked over to the desk of this poor functionary, scribbling away in some basement office, and said something along the lines of: “You know, we have a bunch of islands in the Pacific and the Caribbean—little islands. How about you figure out what the deal is with all these places, legally speaking.” I was holding the result: The Sovereignty of Islands Claimed Under the Guano Act and of the Northwest Hawaiian Islands, Midway, and Wake. And it was splendid to behold: nearly a thousand pages of intricate legal arguments and historical documentation on the strange history of the United States’ nearly invisible, but surprisingly vast, insular empire.

The Guano Act? What is guano? It’s bat excrement, right?

Yes. And bird doo, too. In this case, it refers to the bird version.

So there was a US law about bird droppings that somehow proves important for thinking about the law of sovereignty?

Indeed. The Guano Islands Act of 1856 arguably laid the legal groundwork for American imperialism.

Can you explain how?

Basically what happened was that in the first half of the nineteenth century, Europeans and Latin Americans figure out that the phosphate-rich deposits of seabird droppings that had accumulated on many small Pacific islands make spectacular fertilizer. The stuff is like magic, and farmers everywhere are suddenly clamoring to get their hands on some. There’s a boom, the price skyrockets, the Peruvians more or less control the market, and supplies are short. Everybody is looking for new sources, there’s tons of fake guano trading hands—it’s chaos. Enter the US farm lobby. Farmers in the United States start pressuring Congress to pass some sort of legislation that will improve domestic access to this vital excrement. The result is the Guano Islands Act, legislation that authorized the United States to take control of a guano island if a citizen discovered it and undertook certain actions to take possession of it.

The interview goes on from there with discussions of U.S. practice regarding the territorial acquisition of islands, the legal neologisms that were used to provide a bit of cover for policymakers, how the jurisdictional ambiguities that were devised have echoes today in the Guantanamo litigation, and the lasting importance of the “Insular Cases” decided by the U.S. Supreme Court.

Very interesting and surprisingly relevant for a wide variety of issues ranging from national security policy to the relationship of domestic courts to foreign policy, to current debates over sovereignty and self-determination. I had not been familiar Burnett’s scholarship but now I am looking forward to reading it.

Hat tip: Things Magazine

On behalf of all of us at Opinio Juris, I want to thank Amos Guiora for taking time to blog with us this past week about his new book, Freedom from Religion. We would also like to thank Paul Cliteur, John Lentz, and Mark Movsesian for guest blogging with us as well and providing such an interesting and informative discussion on religious freedom and national security.

And, of course,  thanks to all of you who took time to read the posts (and comment as well!).

One aspect of Amos’ proposal that I think needs to be emphasized is that he suggests curtailing certain types of speech because of certain hoped-for practical advantages in counter-terrorism. It is, essentially, a utilitarian argument. However, taking his suggestion on its own terms, I am not persuaded that the U.S. undertaking a new policy of curtailing religious speech would in fact enhance security. As Mark Movsesian mentioned in his recent post, I look forward to some concrete examples of how Amos suggests effectuating such a policy. But, based on my current understanding of Amos’s proposal, I think that regulating religious speech in the interest of national security would at best have little impact and at worst may be counterproductive.

The problem of being ineffective comes is due to two independent problems: the problem of secular terrorism and the problem of metaphorical speech.

Mark Movsesian laid out the secular terrorism issue in his two posts and I largely agree with his observations and argument. I would like to underscore that terrorism around the world is just as often (if not more often) wrapped-up in the language of nationalism, race, class, or ethnicity. To target religious speech would be target only part of the overall problem of terrorism. I am as yet unconvinced that this would warrant such a profound incursion into the First Amendment.

Moreover, it is unclear to me that the root cause of much of today’s supposedly religious terrorism is in fact religion. So many of the “foot soldiers” of terrorism are recruited out of slums where there is little sense of hope. Yes, there are also the Mohammed Attas of the world, relatively well-off and willing to murder civilians for a religious cause—but the story of terrorism recruitment is still primarily a story of targeting people (usually adolescent boys) who have little hope for a better future. Desperationis the lifeblood of terrorism; religious speech is often simply a motivational and organizational technique. Strike at religious speech and you have not eradicated the root of terrorism; it will simply continue under one of the secular organizational logics (class, race, nation, etc.) that are used so often.

There is also the problem of metaphorical speech. While issuing a proclamation that someone must be killed is clear enough, what do we make of a cry from a pulpit for “God to rain down his judgment on [some person or people]?” Is that an actual call to violence? What if one asks for “lashes of fire”(to use Amos’s example)? Some might view that as merely metaphorical language. Others may interpret it as an order for a hit. Would Amos suggest an regulating religious speech beyond our current laws concerning incitement? If so, to prohibit metaphorical language that could be interpreted as a call to violence is to give the secular government the role of religious interpreter. This would not only degrade religious speech but place the government in a no-win situation in which it would essentially have to decide which religious speech or metaphor is important to a religion and which is not. The true bad actors can always further hide their intentions in further coded or metaphorical language.

These concerns all make me wonder whether the regulation of religious speech in the interest of national security would be effective. But I am also concerned that it would actually be counter-productive. If terrorist recruiters feed on a sense of grievance, of “otherness,” then we would ratify their arguments by outlawing people simply talking about God or religion in the way that they want. Even if each assessment was on a case-by-case (or metaphor-by-metaphor?)basis, given the risk of misinterpreting a religious tradition that one does not understand well, there is a real risk of over-regulation the U.S. government of Islamic religious speech and possibly “under-regulating” ostensibly Christian speech. Each such slip-up either way could be a public relations bonanza for the al Qaedas of the world. Better, perhaps, to leave theology to the theologians.

We are very pleased to host for the next three days a discussion of Amos Guiora’s new book, Freedom from Religion: Rights and National Security(Oxford 2009).  Amos is probably well known to many readers of this blog, a professor at the University of Utah’s S.J. Quinney College of Law and a retired Lieutenant Colonel from the Israel Defense Forces Judge Advocate General’s Corps, Amos is a frequent writer and commentator on issues of national security and the law of armed conflict. He was also a regular blogger at National Security Advisors.

Amos’ new book has been getting much attention for its provocative argument concerning the interrelationship of religious freedom and national security policy. Between the controversies over the construction of an Islamic cultural center near the Ground Zero site and the proposed burning of the Koran by a conservative Christian pastor, it is hard to think of a more timely or more contentious topic. I will leave to Amos the explication of his argument.  Unlike some corners of the blogosphere and cable outlets, we make a real effort at shedding more light than heat and so we have put together a group of thoughtful commentators to guest with us for this symposium.

Joining us for this discussion are Paul Cliteur, a professor of jurisprudence at the University of Leiden and the author of the recent book The Secular Outlook: In Defense of Moral and Political Secularism (Wiley 2010),  as well as Peggy’s and my colleague Mark Movsesian, the Frederick A. Whitney Professor of Contract Law st St. Johns Law School and the founding director of the Law School’s Center for Law and Religion. Mark contributes the the blog Law, Religion, and Ethics: A Multifaith Dialogue. We also hope to be joined by the Rev. Dr. John C. Lentz, the pastor of the Forrest Hill Presbyterian Church in Cleveland Heights, Ohio. We are fortunate to have such a group of experts guest blogging with us on such an important issue.

We encourage our readers to comment and look forward to what promises to be a lively discussion.

Between Jose’s guest blogging and book discussion we are about to start on Amos Guiora’s book on religious freedom I  want to sandwich a short notice about my recent favorite topic: no-holds-barred full contact chess arbitration.

Backstory: here for the arbitration, here for the Russian regional politics and space aliens,and here for how it relates to the proposed Islamic center near Ground Zero.

I know you have been waiting with bated breath and I have news to pass along: first the case before the Court of Arbitration for Sport has been dismissed.

You can find a copy of the decision in a link from the FIDE press release.

The ChessVibes blog has posted a good analysis with lots of color commentary and background info. The main issue was whether Ilyumzhinov and others on his slate had been members for more than a year of the national federations that nominated them. According to the CAS, the FIDE Electoral Regulations are drafted such that a nominee only “should” as opposed to “must” or “shall” be a member in good standing. Talk about first year drafting. The analysis at ChessVibes concludes:

In other words: Ilyumzhinov’s ticket wasn’t disqualified by the CAS in Lausanne because of poor formulated regulations, which was never discovered before because thus far nobody needed to check these regulations. And it seems the chess world got stuck in a Catch-22 in that it might need a new FIDE President to improve the regulations that kept the incumbent one for running for a new term.

For a more idiosyncratic take (as well as various crimes against typesetting) check out the Ilyumzhinov campaign’s release about the case.

Ilyumzhinov was subsequently re-elected the World Chess Federation president.

So four more years of space aliens, Chess Cities, and who knows what else. I think a galactic ambassadorship might be in order!

I’d like to pick up a thread is in Chiara’s book and is teased out in both Gian Luca’s post and Ben Davis’s comment on Chiara’s most recent post on Somalia: the view that state failure is notan “on/ off” characteristic, but rather is a continuum ranging from governments that are somewhat incompetent (insert your state of choice here) to essentially nonexistent (Somalia). I like Ben’s insight that there is a temporal factor to this and that states may move up and down this continuum. Haiti, I think, is an example of a state that, especially between 1987 and today, has slid up and down the continuum of levels of dysfunctionality.

Chiara’s book is in part concerned with expanding the toolbox available to the international community to respond to when a state starts sliding down the continuum. In her opening post in this discussion, she wrote:

States can gain statehood quite easily, but there is no method to assess changes in the constitutive elements of a State, and thus adjust the standing and responsibilities of States when they start to fail.

In other words, as states become more dysfunctional, should we adjust their status as members of the international community? That we should get rid of the binary view of statehood–either you are a state or you are not–and have a conception that is more flexible and nuanced?

One resultant question would be who decides if a state has slid down the continuum of dysfunction and, equally importantly, what may (or may not) be done by members of the international community who believe a state is becoming increasingly dysfunctional, but the government (and perhaps a portion of the population) of that state disagrees with the assessment of those members of the international community?

If statehood should no longer be binary, this may make that the act of recognition itself much more complex. If states may “adjust the standing” of other states as those countries become increasingly dysfunctional, isn’t this like “de-recognizing” a state? If so, doesn’t this take the politics of recognition and instead of making it effectively a one time “on/ off” choice (think Kosovo or South Ossetia), it turns it into an ongoing debate as to how much recognition a state should receive?

We are very pleased to host from today through Friday an online symposium considering Chiara Giorgetti‘s book A Principled Approach to State Failure: International Community Actions in Emergency Situations (Brill 2010).

Dr. Giorgetti, an attorney at White and Case and an adjunct professor at Georgetown Law Center, will be with us for the rest of the week, discussing various of themes from her book. Moreover, we will also be joined by Gian Luca Burci, the Legal Counsel of the World Health Organization; Greg Fox of Wayne State University Law School; and Guglielmo Verdirame of the University of Cambridge and the Lauterpacht Centre for International Law. We are honored to have such a distinguished group of guest bloggers.

The terms “failed state” and “fragile state” are thrown around all too often in international legal and political commentary (and sometimes in OLC memoranda…) with just a general sense that “we’ll know one when we see one.” Chiara’s study attempts to unpack what these terms actually mean and assess the efficacy of the international legal tools and techniques we use to address failing or failed states. Weaving together analyses drawing from multilateral responses to health, environmental, and human rights emergencies, as well as examples of foreign military interventions into failed states, this book not only attempts to describe in detail what it means for a state to falter and collapse but also considers the role (if any) that international law and institutions may play regarding the problem of failing states. It is a wide-ranging and timely book that has already sparked debate.

We at Opinio Juris look forward to the discussion and encourage our readers to get involved by posting comments and queries of their own.

The AsianSIL has a call for papers for its Third Biennial Conference which will be held August 27-28, 2011 in Beijing. The conference theme is Asia and International Law: A New Era. (Note: no “?” at the end of the theme like a confernce organized by hedging U.S. academics. I can say this becuase I have stuck my share of question marks at the end of conference themes.)

Further information on the call for papers after the jump.

Alan Feuer has a very interesting article in today’s NY Times about the Analytic Unit of the NYPD’s Intelligence Division. Feuer piece explains

To bolster counterterrorism operations after 9/11, the Police Department expanded its Intelligence Division — run by David Cohen, a 30-year veteran of the C.I.A. — with detectives who had mainly spent their careers chasing street gangs, drug lords and violent Mafiosi. Such trained investigators brought with them specific skills the department thought would translate into the fight against terror: the ability to read a suspect’s manner and the talent for managing secret informants.

What they needed, in turn, were people to help them translate their skills to new terrain, people with a firm cultural grasp of the suspects they were meant to be pursuing. Over the years, a gang detective in the Bronx will probably have developed a radar able to determine at a glance the meaning of a hand gesture or a prison tattoo. But, as one former intelligence detective said of potential Islamic extremists, “when we first started, we didn’t even know they prayed on Fridays.”

Enter the Analytic Unit, which Samuel J. Rascoff, who ran it from 2006 to 2008 and is now a law professor at New York University, described as an attempt to bring “the culturally exotic world of the ivory tower to bear on the gritty problems of counterterrorism as experienced by beat cops and seasoned detectives.”

The Analytic Unit:

stands as a unique experiment in breaking traditional law-enforcement boundaries, comprising two dozen civilian experts — lawyers, academics, corporate consultants, investment bankers, alumni of the World Bank and the Council on Foreign Relations and even a former employee of the Foreign Ministry of Azerbaijan.

I think there is a compelling case that, due to its high-profile as terrorist target, the NYPD needs to have wide-ranging analytical prowess. For more on the NYPD’s Intelligence and Counterterrorism Divisions, see Christopher Dickey’s book Securing the City. However, the rise of these divisions has not been without controversy. At times, there have been issues regarding the protection of civil liberties. But, even within the intelligence community, there has been some friction. See, for example, this post from the Washington Post’s SpyTalk blog.

One thing is certain, how intelligence analysis is integrated with local policing is a topic of great importance. To get a sense as to how this is being done in New York, Feuer’s article is a great place to start.