Author Archive for
Chris Borgen

NewSpace 2013 Panel on Legal Issues Concerning the Commercialization of Space

by Chris Borgen

The Space Frontier Foundation’s NewSpace 2013 conference is currently underway in Silicon Valley. The program description explains that:

The three day event will focus on the current, near term, and future potential and challenges of the emerging commercial space industry. People from throughout the space, advocacy and technology industries to those in startups, government and media bring their ideas for opening the high frontier making this conference a hotbed of innovation and partnership.

As we have discussed here before, the commercialization of space as well as new governmental initiatives present challenges to the existing framework of space law. The NewSpace conference will have a panel on space law issues and commercialization on Saturday at 2:00 pm (Pacific Daylight Time):

Sinking the Iceberg: The Current Legal Landscape of Utilization Rights in Space (And How We Can Change It)
While property rights here on Earth have been established for millennia, the legal landscape of space outside of Earth orbit is relatively undefined. The Outer Space Treaty, widely-ratified in 1967, explicitly forbids any government from appropriating the moon or other celestial bodies, which some claim prevents anyone using resources in space from doing so without sharing it with the entire world. However, very ambitious companies have already declared their intentions to use the resources of space for private gain, and the time has come to re-examine the laws of outer space utilization and property rights from a modern perspective. In this panel, we bring together some of the experts on how we could create a practical legal regime, and develop the technologies needed, to encourage and promote the utilization of resources beyond low-Earth orbit.

The whole conference, including the space law panel, will be videostreamed on the conference homepage.

For more on international law and the commercial space industry, see the Opinio Juris / Melbourne Journal of International Law discussion of Steven Freeland’s MJIL article “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?” (1, 2, 3) and don’t forget the American Society of International Law’s new Space Law Interest Group.

American Journal of International Law Symposium Starts Today

by Chris Borgen

We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University).

Today and tomorrow there will be a discussion of Leila Sadat‘s article, Crimes Against Humanity in the Modern Age. The précis of her piece explains that:

This article analyzes the centrality of crimes against humanity prosecutions to the International Criminal Court’s fulfillment of its mandate to prevent and punish atrocities committed in strife-torn regions. Ad hoc international criminal tribunals established in several states will complete their work soon, leaving the Court as the sole functioning international criminal authority. But the Court’s jurisprudence since its 1998 founding raises serious concerns about its interpretation of, and willingness to fully utilize, the powers conferred by its jurisdictional statute.

Darryl Robinson (Queen’s University) and Elies van Sliedregt (VU University Amsterdam) will participate in the discussion of Leila’s article.

On July 24th and 25th the discussion will move to Eyal Benvenisti’s article, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders. The AJIL summary for that article states:

The concept of sovereignty crystallized in an era when distances were large, and self-sufficiency the aspiration. This view of sovereignty is no longer sustainable and yields inequitable, undemocratic consequences. This article argues that in a densely populated and deeply integrated world, sovereignty should be understood as also involving a trusteeship toward humanity at large. Sovereigns should be required to take into account other-regarding considerations when forming national policies that may have effects beyond their national jurisdictions, even absent specific treaty obligations.

Armin von Bogdandy and Dana Schmalz (Max Planck Institute for Comparative Public Law and International Law), Jan Klabbers (University of Helsinki), and Christopher McCrudden (Queen’s University Belfast) will comment on Eyal’s article.

As always, readers are welcome and encouraged to participate in the discussion via the comments section for each post.

We are very happy to be working with the editors of the American Journal of International Law on this symposium and look forward to the conversation.

Political Science Fiction

by Chris Borgen

In his book Grand Strategies: Literature, Statecraft, and World Order, former diplomat and Yale professor Charles Hill argues that

The great matters of high politics, statecraft, and grand strategy are essential to the human condition and so necessarily are within the purview of great literature. Tolstoy’s War and Peace treats them directly. What has not been much recognized is that many literary works read and praised for insights on personal feelings, such as Jane Austen’s Emma, possess a dimension wholly apt for statecraft—in Emma’s case, the gathering and misanalysis of intelligence. (p.4)

Hill’s book is a treatment of the lessons in statecraft that one can glean from great literature. (However, note this criticism of Hill and his book.) If it “has not been much recognized” that those books can have lessons in statecraft, I’d like to propose that it has been even less recognized that there are some great insights to be learned from fantastic fiction. Science fiction, fantasy, speculative fiction, books described in this way are rarely described as “great literature.” And when they are, it is sometimes as if they are great despite the fact that they are fantastic. I will set that literary debate aside. Instead I want to focus squarely on what we as international lawyers and foreign policy wonks can glean from sci-fi.

Hill argues that:

1)Statecraft is protean, incessantly assuming different forms and presenting new predicaments beyond the ken of established methodologies; 2) some of the greatest classical texts—the Iliad, the Aeneid—deal with such challenges through their unboundedness, intertwining what would be later labeled as history, theology, psychology, literature, and philosophy before those modern disciplines were formalized; 3) literature, however, largely has remained unbounded, able to probe realms of statecraft which other disciplines have placed off–limits… (p.7)

This is all the more true with the realm of science fiction which probes areas that today are becoming science fact all too quickly: the expansion of the surveillance state (Hallo, Huxley! How do you do, Mr. Orwell?), cyberwarfare (Paging the U.S. Cybercommand: William Gibson would like his future back), and the use of drones (Are we waiting for Godot or for Skynet?). But science fiction is not just about technology, it can be a way to see the present from a new angle. It can be political science fiction and political science fiction at the same time.

What fiction can bring to international law has been on my mind a bit these last few weeks. The ongoing “revelations” about the massive surveillance program that modern technology enables our (and I’m sure, other) government to undertake has caused a “we are living in a sci-fi world” meme to pop-up more and more often in the main stream media. Last week, Christopher Warren blogged here about the relationship of international law to the humanities…

(Continue Reading)

Regulating the Global Market of Zero-Day Exploits

by Chris Borgen

Nicole Perlroth and David E. Sanger describe in the July 14 New York Times the increasingly global trade in computer vulnerabilities. The recent growth of this hacker market has been fueled by purchases by the U.S. and other governments. Can this market be effectively regulated? And if it is eventually regulated, would it be for the wrong reasons?

Let’s take a step back. Let’s say there is some hacker, call him DarthBorgen, who seeks out holes in company firewalls, e-mail systems, online payment systems, cellphone operating systems, and so on. The most interesting hole to find is a “zero-day exploit,” a vulnerability that the company does not even know about. (“There are zero days between the vulnerability being discovered and the first attack.” ) If DarthBorgen is a “black hat” hacker he may use that exploit to steal from the company himself or he may sell it to a rival company what would use it in some illegal corporate espionage.

However, he may post the exploit to one of the hacker boards and as a means to burnish his reputation as a skilled hacker. His goal would not be to steal but to show off. Once he posts, the company would also probably learn of the exploit and they would patch it. Maybe, when a company was looking for a security specialist down the line, they might contact DarthBorgen, due to his formidable skills and reputation in the hacker community, and offer him a consulting fee. DarthBorgen might even become a computer security consultant who only tests a company’s systems at their request so that they may better understand their own vulnerabilities. (Maybe he changes his tag to ObiWanBorgen.)

Hackers started to increasingly go directly to companies where they found zero-day exploits and offering to sell their information to that company. This meant that exploits began to have a market value based on what the vulnerable company would be willing to pay for the information about the exploit.

At the crux of the Perlroth and Sanger article is how the arrival of government money has transformed the exploits market.

The U.S. government was an early mover in paying increasingly larger sums for exclusive access to exploits. And, importantly, while companies paid for exploits in their own system so that they may patch the holes, the U.S. government paid for exploits so that they could hack computers in intelligence operations or law enforcement investigations. Keep in mind that Internet Explorer and iPhones (to take two examples) are used all around the world by private citizens, governments, and companies.

Other governments followed suit. Perlroth and Sanger report that:

Israel, Britain, Russia, India and Brazil are some of the biggest spenders. North Korea is in the market, as are some Middle Eastern intelligence services. Countries in the Asian Pacific, including Malaysia and Singapore, are buying, too, according to the Center for Strategic and International Studies in Washington.

At a cyberconflict conference that we had at St. Johns in April, Christopher Soghoian of the ACLU spoke about the exploits market. In an interview for Sunday’s New York Times he said:

“The [company-funded] bounties pale in comparison to what the government pays.” The military establishment, he said, “created Frankenstein by feeding the market.”

The March 20 issue of The Economist had an article on the “digital arms trade” that included minimum prices for zero-day exploits for various programs. That article listed Internet Explorer exploits fetching at least $500,000, Windows 8 about $250,000, and iPhone 5 about $200,000 per exploit. The Times article quotes some lower prices, stating that “[t]he average flaw now sells from around $35,000 to $160,000.” Regardless of which figures are more accurate, all this government money is irrigating the hacker economy. Companies have sprung-up to take reap the benefits of the money being poured into the exploits market with a business model around finding exploits and then sending them to the highest bidder (often intelligence agencies).

The Times article noted a 2007 paper on the exploits market by Charlie Miller, a former NSA employee who was offered $80,000 by the U.S. government for a bug that he had found in Linux…

[Continue Reading]

Managing Intractable Conflicts: Lessons from Moldova and Cyprus

by Chris Borgen

 

TRNC1

The Open Society Foundations, the Global Political Trends Center (GPoT) of the Istanbul Kultur University in collaboration with Moldova’s Foreign Policy Association and the East East Beyond Borders  Program of the Soros Foundation-Moldova recently completed a project comparing and contrasting the separatist conflicts over Northern Cyprus and Transnistria. The project team included policy experts from Turkey, Cyprus, Greece, Moldova, and me. My focus was on the international legal issues and I contributed a chapter focusing on Moldova. (Long-time readers of this blog may have read my analyses–such as this post–concerning the Transnistrian conflict.)

In preparation of the report, we met in June 2012 in Istanbul and in Northern Cyprus with policy experts and representatives of various parties. In September 2012 we reconvened and had meetings and interviews in Chisinau (Moldova’s capital) and in Transnistria.

The final report, Managing Intractable Conflicts: Lessons from Moldova and Cyprus, was recently published by GPoT and is available as a .pdf via this link.

 

Okinawan Independence and Overlapping Interests

by Chris Borgen

My thanks to Brad Roth for pointing me to a recent New York Times article on activists in Okinawa seeking secession from Japan. Okinawa is part of the Ryukyu island chain. The Ryukyu Kingdom was an independent or semi-independent state until annexed by Japan and renamed the Okinawa Prefecture in 1879. It was occupied by the Allies in World War II and was administered by the U.S. from 1945 until 1972, when it was returned to Japan. (For more on the history of Ryukyu/ Okinawa, see, for example, John Michael Purves’ website.)

According to another article from Asahi Shimbun, arguments for independence are based on an “anti-reversion theory,” that was argued at the time of the U.S returning the islands to Japan in the early 1970’s. “The theory stated that it is an illusion to believe Okinawans can live a peaceful life under Japanese sovereignty.”

A thread running through the Times article is that although the independence movement has been, and is still, relatively small, it is now gaining more attention, getting some modest political traction, and is being taken more seriously than it has since the end of the U.S. administration of the islands.
Why? Because the secessionist movement is becoming increasingly relevant to both the U.S. and China. Consider the implication for U.S. military bases:

“Until now, you were mocked if you spoke of independence,” said one speaker, Kobun Higa, 71, a retired journalist whose book on the history of the tiny independence movement has become a hot seller online. “But independence may be the only real way to free ourselves from the American bases.”

Mr. Higa and other advocates admit that few islanders would actually seek independence for Okinawa, the southernmost Japanese island chain, which is home to 1.4 million residents and more than half of the 50,000 American troops and sailors based in Japan. But discontent with the heavy American presence and a growing perception that the central government is ignoring Okinawans’ pleas to reduce it have made an increasing number of islanders willing to at least flirt publicly with the idea of breaking apart in a way that local politicians and scholars say they have not seen in decades.

According to Asahi Shimbun, “Okinawa Prefecture accounts for only 0.6 percent of Japan’s landmass, but it hosts 74 percent of all U.S. military bases in the country.”

As for China, various activists for Okinawan statehood say that the independence movement:

still has the potential to complicate Japan’s unfolding contest with China for influence in the region.

That struggle expanded recently to include what appears to be a semiofficial campaign in China to question Japanese rule of Okinawa. Some analysts see the campaign as a ploy to strengthen China’s hand in a dispute over a smaller group of islands that has captured international headlines in recent months. Some Chinese scholars have called for exploiting the independence movement to say there are splits even in Japan over the legitimate ownership of islands annexed during Japan’s imperial expansion in the late 19th century, as Okinawa and the smaller island group were.

China/ Japan diplomacy concerning Okinawa is a topic that Julian has previously explored.

While independence movements may become part of geopolitical chess games, they tend to be motivated by much more local concerns. The relationship of Okinawa to the political leadership in Tokyo is clearly a major driving force for the independence movement. Even the U.S. base issue may be best understood less as a geopolitical question, but an issue of budget allocations within a state. According to Asahi Shimbun, one of the independence leaders decided to start his group

after he heard about a meeting of prefectural governors in 2010. At the meeting, Okinawa Governor Hirokazu Nakaima demanded that central and local governments significantly reduce Okinawa’s burden of hosting U.S. military bases, but almost no governors supported him.

“To achieve a breakthrough on the bases issue, discussions on the option of independence are necessary,” said Matsushima.

I’m not convinced that all politics is local, but secessionist movements usually are. Moreover, they often include very personal issues of identity.

According to the New York Times, there is renewed interest in the Okinawan language and in arguments claiming a distinct Okinawan ethnic identity. This reinvigoration of linguistic, cultural, and ethnic identity can drive secessionist claims, but they are also at times spurred on by calls for independence. (For a short history on language politics in Okinawa, see this.)

What I find especially interesting is this Venn diagram of overlapping interests and intents. Some calls for independence movement may actually be motivated by domestic budgetary politics. But this then overlaps with U.S. security concerns in Asia. And the existence of a secessionist claim also overlaps with China’s interest in the Senkaku/ Diaoyu Islands (See also, this.). And, lest we forget, there is probably a group of people that honestly believes that their national identity is being frustrated by being part of Japan.

That’s a lot of political interests converging on a few small islands. It will be interesting to see whether and how much the independence movement dissipates if Tokyo grants budgetary relief to Okinawa Prefecture. Stay tuned…

Diving into Domestic Data Mining

by Chris Borgen

Network from Michael Rigley on Vimeo.

Via Boing Boing a very good short animation discussing data mining. This isn’t focused on the NSA program that is currently the source of discussion and dispute but the broader issue of how both companies and governments are able to retain, purchase, and analyze massive amounts of data.

For a deeper dive into data mining, I highly recommend Inside the Matrix, James Bamford’s March 2012 cover story for Wired. Bamford has written four highly regarded books on the history of the National Security Agency. (See this New Yorker profile of Bamford as the NSA’s “chief chronicler.”) His Wired article focuses on the NSA’s new massive data center in Utah.

But, given that so many people seemed shocked– shocked I tell you!– to hear that the NSA is data mining information from domestic calls, one should read what Bamford wrote over a year ago about NSA activities (not to mention what he had written in his books about the NSA’s history of testing 4th Amendment limits, if not transgressing them):

For the first time, a former NSA official has gone on the record to describe the program, codenamed Stellar Wind, in detail. William Binney was a senior NSA crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network. A tall man with strands of black hair across the front of his scalp and dark, determined eyes behind thick-rimmed glasses, the 68-year-old spent nearly four decades breaking codes and finding new ways to channel billions of private phone calls and email messages from around the world into the NSA’s bulging databases…

OK, so we’re not talking about a new hire at Booz Allen.  Later, Bamford continues:

Binney left the NSA in late 2001, shortly after the agency launched its
warrantless-wiretapping program. “They violated the Constitution setting it up,” he says bluntly. “But they didn’t care. They were going to do it anyway, and they were going to crucify anyone who stood in the way. When they started violating the Constitution, I couldn’t stay.” Binney says Stellar Wind was far larger than has been publicly disclosed and included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts. The haul only grew from there.

Emphasis added.  So, the answer, my friend, has been blowin’ in the [stellar] wind for some time now.

Bamford’s article is long and it is excellent. It provides context for today’s debates. And, as for that new NSA facility? Consider this:

Given the facility’s scale and the fact that a terabyte of data can now be stored on a flash drive the size of a man’s pinky, the potential amount of information that could be housed in Bluffdale is truly staggering. But so is the exponential growth in the amount of intelligence data being produced every day by the eavesdropping sensors of the NSA and other intelligence agencies. As a result of this “expanding array of theater airborne and other sensor networks,” as a 2007 Department of Defense report puts it, the Pentagon is attempting to expand its worldwide communications network, known as the Global Information Grid, to handle yottabytes (1024 bytes) of data. (A yottabyte is a septillion bytes—so large that no one has yet coined a term for the next higher magnitude.)

It needs that capacity because, according to a recent report by Cisco, global Internet traffic will quadruple from 2010 to 2015, reaching 966 exabytes per year. (A million exabytes equal a yottabyte.) In terms of scale, Eric Schmidt, Google’s former CEO, once estimated that the total of all human knowledge created from the dawn of man to 2003 totaled 5 exabytes. And the data flow shows no sign of slowing. In 2011 more than 2 billion of the world’s 6.9 billion people were connected to the Internet. By 2015, market research firm IDC estimates, there will be 2.7 billion users. Thus, the NSA’s need for a 1-million-square-foot data storehouse. Should the agency ever fill the Utah center with a yottabyte of information, it would be equal to about 500 quintillion (500,000,000,000,000,000,000) pages of text.

The data stored in Bluffdale will naturally go far beyond the world’s billions of public web pages. The NSA is more interested in the so-called invisible web, also known as the deep web or deepnet—data beyond the reach of the public. This includes password-protected data, US and foreign government communications, and noncommercial file-sharing between trusted peers…

Yeah, you really should read Bamford’s article.

Further Debate Over Whether There is a “Least Harmful Means” Rule in the Law of Armed Conflict

by Chris Borgen

As readers of Opinio Juris know, Ryan Goodman argues in a forthcoming article in the European Journal of International Law  that:

“the modern law of armed conflict supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided.”

Whether an obligation under the law of armed conflict (LOAC) to use the least harmful means possible against enemy belligerents exists has been the subject of much debate on this blog (1, 2, 3) and at Lawfare (see, for example, this)  and Jens Ohlin has also explored similar issues in his scholarship on the duty to capture.  I want to give readers a “heads-up” that Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen, who participated in the Lawfare discussion of Ryan’s piece (go to this link for a list that includes their posts, or go directly to their first post), have just posted to SSRN a full length article being published in the U.S. Naval War College’s International Law Studies on the question of whether a “least harmful means” rule exists. Their short answer is in the title: “Belligerent Targeting and the Invalidity of the Least Harmful Means Rule.” Here’s the abstract:

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this obligation to capture rather than kill, or use the least harmful means to incapacitate enemy belligerents, do not contest the general authority to employ deadly force derived from belligerent status determinations. Instead, they insist that the conditions that rebut this presumptive attack authority are broader than the traditional understanding of the meaning of hors de combat embraced by military experts, and include any situation where an enemy belligerent who has yet to be rendered physically incapable of engaging in hostilities may be subdued without subjecting friendly forces to significant risk of harm.

This essay offers our collective and — we hope — comprehensive rebuttal of this least harmful means LOAC interpretation. First, Section I reviews the fundamental principles of the LOAC that permit status-based attacks against enemy belligerents with combat power highly likely to cause death unless and until the enemy is rendered physically incapable of participating in hostilities. Section II thoroughly analyzes the affirmative prohibitions on the use of force that the LOAC — and specifically Additional Protocol I — does require, and also highlights what Additional Protocol I does not require. In particular, the fact that Additional Protocol I — by any account the most humanitarian-oriented LOAC treaty ever developed — did not impose any affirmative least harmful means obligation vis à vis belligerents undermines any assertion that such an obligation may be derived from the positive LOAC. Finally, and perhaps most importantly, Section III emphasizes how this least harmful means concept, especially when derived from an expanded interpretation of the meaning of the concept of hors de combat, is fundamentally inconsistent with the tactical, operational, and strategic objectives that dictate employment of military power.

The LOAC must, as it has historically, remain rationally grounded in the realities of warfare. We are confident that anyone grappling with this issue understands that decisions related to the employment of combat power are not resolved in the quiet and safe confines of law libraries, academic conferences, or even courtrooms; they are resolved in the intensely demanding situations into which our nation thrusts our armed forces. The law must, as it always has, remain animated by the realities of warfare in the effort to strike a continuing credible balance between the authority to prevail on the battlefield and humanitarian objective of limiting unnecessary suffering. The clarity of the existing paradigm achieves that goal and does not include any legal obligation to use the least harmful means in targeting enemy belligerent personnel.

Deadline Approaching for Submissions to AJIL’s Agora on post-Kiobel Human Rights Litigation

by Chris Borgen

A quick reminder to all readers that the American Journal of International Law is looking for submission on “Transnational Human Rights Litigation After Kiobel.” You can see Opinio Juris’ own discussion on the topic here.  The June 15th deadline for the AJIL Agora is approaching. Here is the call for submissions, which is also available on the ASIL’s website.

Call for AJIL Agora Submissions: 

Transnational Human Rights Litigation After Kiobel
The American Journal of International Law is calling for short submissions (maximum 3000 words, including footnotes) for a forthcoming agora on “Transnational Human Rights Litigation After Kiobel.” Contributions must not have been previously published in whole or in substantial part (on the web or elsewhere). Some of the chosen contributions will be published in the October 2013 issue of the Journal. Other selected contributions may be published electronically in a special ASIL online publication. All contributions must be submitted no later than June 15 in order to be considered. Contributions on U.S. law issues, and on comparative and non-U.S. dimensions, are welcome. The editors aim to publish a set of distinctive contributions, rather than many making similar points. All selections for publication in AJIL or in the ASIL online publication will be peer reviewed by a committee of the AJIL editorial board consisting of Carlos Vázquez (chair), Curtis Bradley, and Ingrid Wuerth, in consultation with Co-Editors in Chief José Alvarez and Benedict Kingsbury. Decisions on publication (including requests for revisions) will be made on a rolling basis, but in any case no later than June 30. Submit contributions to ajil [at] asil [dot] org with “Kiobel Agora” in the subject line.

Harold Koh’s Speech at the Oxford Union

by Chris Borgen

Former State Department Legal Adviser Harold Koh spoke yesterday at the Oxford Union. His speech, “How to End the Forever War?” (link to .pdf) is a reflection on the Obama Administration’s  foreign policy, in particular in regards to the rule of law.  It is also a talk set to contrast the Obama Administration’s approach to international law and foreign policy from the Bush Administration’s. He opens in this way:

Now that I have returned to the academy, I tend to hear three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that “the Obama approach to that conflict has become just like the Bush approach;” and third, that we have no available strategy to bring this conflict to an end in the near future. Tonight, let me reject all three propositions.

Let me ask what the real question is that faces us, suggest the right approach to addressing it, and outline three elements of an answer. In a nutshell, our question should be: “How to End the Forever War?” Our Approach should be what I would call: “Translate, not Black Hole.” And our three-part answer should be: “(1) Disengage from Afghanistan, (2) Close Guantanamo, and (3) Discipline Drones.”

This speech is a sort of book-end with former Department of Defense General Counsel Jeh Johnson’s recent speech (also at the Oxford Union) that mentioned there will come a time when we transition from looking at this as an armed conflict against an organized enemy to a counter-terrorism effort against individuals. Koh’s speech extends this theme, giving his perspectives on how to get to that tipping point. Well worth the read.

Cyberconflict: Threats, Responses and the Role of Law

by Chris Borgen

Today (April 12) St. John’s Law School of Law is hosting a conference in New York  in cooperation with NATO’s Allied Command Transformation group entitled Cyberconflict: Threats, Responses and the Rule of Law. The conference brings together experts from the armed forces, academia, and law enforcement to consider issues at the intersection of technology, law enforcement, national security, civil liberties and international law. In an environment where individual, independent hackers can do the same damage as a government-sponsored cyberattack, how can states craft legal tools, military strategies, and intelligence operations that address national security concerns and differentiate between cyberwarriors and amateur hackers acting on their own?

The opening panel, moderated by Peggy McGuinness is “Cyberwar, Jus ad Bellum, Jus in Bello and Views from a NATO Perspective.” Panelists David Fidler (Indiana University Maurer School of Law), Richard Pregent (Legal Advisor for NATO Allied Command Counterintelligence), and Alex Vandurme (NATO Computer Incident Response Capability) will consider  public international law, domestic law, and how it effects NATO strategy regarding cyberwar.

I will moderate the panel on “Public International Law, National Security Law and Cyberconflicts.” Geoffrey Corn (South Texas College of Law), Sean Watts (Creighton University School of Law), and Richard Jackson (Special Assistant to the US Army Judge Advocate General for Law of War Matters)  will consider questions such as whether cyberwarfare can conform to the International Humanitarian Law principles of humanity, proportionality, distinction, and military necessity,  whether the U.S. should pursue a cyberwar treaty, and whether the President order extended cyberattacks without Congressional authorization?

Finally, Jeff Walker (St. John’s) will moderate the session on “Constitutional Issues in Addressing CyberWar/CyberEspionage/CyberCrime.”  Susan Brenner (University of Dayton School of Law), Amy Harman Burkart (Cybercrime Unit, U. S. Attorney’s Office for the District of Massachusetts), and Christopher Soghoian (The American Civil Liberties Union) will address questions such as what legal framework applies when states defend against, investigate, and prosecute non-state-actors who engage in cyber-espionage or computer-based crime and how do we differentiate between cybercrime and cyber war?

I will post on the substantive issues in the coming days. The St. John’s Journal of International and Comparative Law will also have a symposium issue in the fall devoted to the conference papers.

ASIL Launches the Space Law Interest Group

by Chris Borgen

Lawyers take note: science fiction is become less fiction and more science every day. In the last year we have witnessed the launch of the first commercially built capsule to resupply the International Space Station (ISS), the announcement of significant private ventures aimed at eventually mining asteroids (1, 2, see also this), the announcement of a plan to send two people on a privately-funded Mars flyby mission in 2018, an asteroid exploding over Russia on the same day that another flies by the Earth beneath many satellites, and the formation of a company attempting to land humans on Mars as of 2023… on a one-way trip.

Humanity’s exploration of space may only be in its earliest stages, but the legal implications are already widespread and varied.  Some activities, such as multilateral cooperation on “big science” projects like the ISS or responding to the threats posed by asteroids, are government-led.   But the private sector is also undertaking new, increasingly audacious projects—from expanding the commercial space launch market to mining asteroids. Space law is an evolving, robust practice area for international lawyers.

And so it is fitting that the American Society of International Law has started a new Space Law Interest Group (Space IG).  Brian Israel, of the State Department’s Office of the Legal Adviser, and I are currently the Space IG’s co-chairs. We look forward to working on the group’s programs for this next year. (We should note that the person who most recently sent in a suggestion that the ASIL should have such an interest group is actually a high school student member of the ASIL. Talk about the future of the legal profession!)

While the actual activities of the Space IG will be designed by the members, the founding conception is that it will serve as a forum, resource, and community for scholars and practitioners of the international law governing the use and exploration of outer space.  And it is a community for ASIL Members to connect with others interested in these issues, and a bridge to other space law communities around the world.

More generally, the Space IG, along with the new International Law and Technology Interest Group, are part of the ASIL’s expanding programming on the relationship of society and technology. And there are many issues related to space and technology that warrant consideration by international lawyers.

Yet that observation is nothing new. Since the dawn of the space age, international law has played an essential role in the peaceful use of outer space by an ever-growing range of actors. The space applications that are ubiquitous in modern life—from communications and navigation to weather forecasts and disaster response—are enabled in significant measure by a robust international regime comprising a settled international legal framework as well as non-binding principles and guidelines.

It is an exciting time for space exploration and an important moment for international law. Issues of long-term sustainability, the prospect of audacious, unprecedented uses of space, and emerging commercial space activities present significant governance challenges and important roles for international lawyers.

We will be having the first meeting of the Space IG at this year’s Annual Meeting of the ASIL.  Regardless as to whether you are able to attend the Annual Meeting, if you are interested in possibly joining the group, please contact me.