Author Archive for
Chris Borgen

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.

 

Blogging from The Hague: The Peace Palace Centennial

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 will mark the 100th anniversary of the opening of the Peace Palace at The Hague. In commemoration of this, the Government of the Netherlands and Radio Netherlands Worldwide have brought a group of ten bloggers and online journalists from around the world to The Hague for a series of programs, meetings, and interviews surrounding the festivities. I am here on behalf of Opinio Juris.

Over the course of the next few days, I will post on the various meetings and events in which I will be participating. For those of you who like to use Twitter, there will also be tweets from various participants with the hashtag #peace100.

Tuesday we will begin in earnest with meetings with International Court of Justice President Peter Tomka, Secretary General of the Permanent Court of Arbitration Hugo Hans Siblesz, and various officials from the Netherlands Ministry of Foreign Affairs.

The day will conclude with an event focusing on women’s rights, peace, and international law that will include presentations by 2011 Nobel Peace Prize Laureate Leymah Gbowee, currently the Special Gender Advisor to the International Criminal Court, Brigid Inder, the Executive Director of the Women’s Initiative for Gender Justice, and Stephen Rapp, the U.S. Ambassador for War Crimes Issues.

I invite Opinio Juris readers to post any questions you would like posed to Judge Tomka, Hugo Hans Siblesz, Leymah Gbowee, Brigid Inder, or Stephen Rapp. I will blog on these events in the coming days and if I ask any of the reader questions, I will post the answers.

Stay tuned…

David Kaye on “Stealth Multilateralism”

by Chris Borgen

The new issue of Foreign Affairs has an article by David Kaye, entitled “Stealth Multilateralism.” He begins the piece by describing the point of view of the “sovereigntists,” (often conservative Republicans) who view treaty-making as a threat to national sovereignty.  (See, for example,  this recent post by Peter on sovereigntist views.)

After arguing that treaty-making is actually an expression of sovereignty, Kaye closes the introductory section in this way:

Yet rejection is just the beginning of the story. Over the past two decades, the executive branch has developed and expanded a variety of lower-profile methods for asserting the country’s interests abroad in ways that do not require Senate involvement. The Clinton, Bush, and Obama administrations figured out that on some issues, they could circumvent the Senate entirely, and they developed new ways to participate in international forums, sometimes even exercising leadership in institutions that the Senate had refused to allow the United States to join.

Call it “stealth multilateralism.” Using a patchwork of political and legal strategies, the United States has learned how to respond to the global problems that are pulling it into the world even as Senate Republicans are trying to hold it back. As sound and effective as such measures can be, however, stealth multilateralism has its limits, since treaties establish more stable, transparent, and predictable relationships than political commitments. Both the United States and the rest of the world would benefit from a return to responsible multilateral engagement in which treaties regain their central role.

What follows for the rest of the article is a careful examination of the foreign policy costs of near-wholesale treaty rejection, the “subtle form of rejection” in the U.S. practice of treaty reservations, and, how Presidents have found work-arounds, such as non-binding agreements, to remain engaged in a policy area despite the Senate’s refusal to ratify. Crucially, Kaye explains the limits of those tactics and why the American public loses when we do not have a real discussion of the pros and cons of a particular treaty.

Kaye’s essay is a great primer on the interplay of U.S. domestic politics with international treaty-making. Check it out.

New Study on Climate Change and a Possible Surge in Conflicts

by Chris Borgen

Following-up on Kevin’s post that illustrated the increasing temperature anomalies of the world’s climate, I want to point out a recent study pointing to evidence of a link between increasing global temperatures and a rise in violent crime and larger-scale conflicts, such as wars. Smithsonian.com reports:

Now, in the most comprehensive analysis of the work on climate change and armed  conflict to date, a team from UC Berkeley and elsewhere has found that  these climate trends are indeed likely to significantly increase the incidence  of armed conflict overall. Their paper, published[on August 1st] in Science, examined  60 studies to aggregate sets of data on events spanning 8000 B.C.E. to the  present that examined climate variables and incidences of violence in all major  regions of the globe.

But, the part of the study that has been getting the most attention isn’t the historical analysis, but the forward-looking projections .

Extrapolating to the future, these rates mean that if the entire planet went  through an average of 3.6°F of warming by 2050—an optimistic limit set at the 2009 Copenhagen conference—we’d see personal  crime rise by 16 percent and intergroup conflicts surge by 50 percent. The  distribution of violence wouldn’t be equal, either, as climate models indicate  that some areas will be hit with warming periods that fall outside two, three or  even four standard deviations of the norm (and thus experience more conflict)…

To get an idea of which areas may face the most violence, see this map of climate deviations from the norm. There are various caveats, but the researchers believe:

that they conducted the most rigorous analysis possible. The fact that the  climate-violence relationship was consistently found among a wide range of time  periods, cultures and regions, they argue, indicates that there is a substantial  link between the two.

And, of course, keep in mind that increasing climate may be linked to increasing societal and inter-communal violence because rising temperatures can also adversely affect agricultural production, spawn stronger storms that destroy communities and result in environmental refugees, and so on.

For a recent examination of the legal and policy issues related to climate change, see Andrew Guzman’s new book Overheated: The Human Cost of Climate Change. Also, see this video of Guzman speaking on climate change.  See, also, Hari Osofsky’s and Roger Alford’s posts discussing Andrew’s book.

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…

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