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.

Let’s just put this one in the “I couldn’t have made this up” files. According to the explanation attached to the YouTube clip:

Lip dub for the independence of Catalonia and the rest of the Catalan Countries, recorded October the 24th 2010 in the city of Vic. Achieving a total amount of 5.771 participants, the World Records Academy awarded the World Record for being the lip dub with highest participation ever. The initiative was born by a group of Catalans, whose aim is to let the whole world know that Catalonia is a nation, and without its independence it cannot be assured its survival and future. The chosen song was composed by the group “Obrint Pas” and its title is “La Flama”.

And it’s a ska tune, no less.

Gotta say, even though I write about issues of self-determination, secession, and statehood, I didn’t expect to read this on the front page of the Arts and Leisure section of the Sunday New York Times:

At a glance it looked like any small-town fair, with smoke wafting from the barbecue, families gathering around picnic tables, music percolating over loudspeakers and doting parents trailing after happy toddlers in front of white tents hawking brightly colored T-shirts and knickknacks.

But the Ghjurnate Internaziunale di Corti (the International Days of Corte) were hardly fun and games. It turns out that militant separatists, like baseball owners, car salesmen and trade unionists, also convene regularly to hash out strategies, exchange war stories and rally the troops. The Days, a late-summer annual affair, bring together militants from around the world. Those T-shirts and knickknacks were printed with hooded gunmen pointing rifles, and the barbecue raised money for jailed comrades. Even a few toddlers, like their parents, were decked out in military fatigues…

Sardinian separatists, Basque and Catalan nationalists, Melanesian Kanaks from New Caledonia, Occitanes from Provence and a few leaders of Sinn Fein joined locals to speechify and grumble about prisoners, debate tactics and talk cultural politics. Battles over sovereignty and independence are being waged far less often these days as violent campaigns than as hearts-and-minds political struggles over identity. And identity means culture.

State-building has long gone hand-in-hand with linguistic and cultural politics:

In the 19th century, rising modern states obliterated local cultures to fortify national identities only to pave the way for their revival at the end of that century. The same happened during the last century when the Soviets and Franco’s Spain, along with the British empire, imposed cultures on diverse peoples who, as soon as the opportunities arose, reasserted their own identities in more or less explicitly political protest.

But now cultural identities are fragmenting more than ever.

The irony is that constructing a supranational Europe, rather than homogenizing, say, Basques and Occitanes, into undifferentiated “Europeans,” has helped these movements to define themselves more clearly. For one thing, founded or unfounded fears of homogenization can be a spur to action (or at least to a sharper sense of self-definition). Moreover, (and seemingly contradicting this first point), EU practices can seem more protective of national minorities than local policies. Maite Goientxe, a Basque representative at the Days of Corte, notes:

“Like all cultural questions, language is ultimately a political matter. Basque is not permitted today in my part of France, which means Basque representatives from my region can speak Basque at the Parliament in Brussels, but not back home. From our perspective that’s discrimination. Critics say separatists promote division and exclusion, but we say independence movements are about the opposite of exclusion. We want to get rid of the exclusion we feel today.” [Emphasis added.]

Perhaps moreso than the much-anticipated ICJ Advisory Opinion on Kosovo, EU policies towards language rights and cultural diversity will likely be important factors in framing the ongoing push-and-pull between national minorities and national governments in the EU. If the Days of Corte are any indication, linguistic and cultural politics (more so than ideological or ethnic politics) will likely remain the central issues in this debate.

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!