Our own Chris Borgen recently did an interview about Opinio Juris on a New York City Cable Show, Today’s Verdict.  You can watch it here.  Chris talks about the origins of the blog, past successes and our more recent work (mostly for an audience unlikely to know much about international law).  To top it all off, Chris looks great on TV. Good job Chris!

Via an e-mail from Dan Joyner I learned today about a new blog he’s founded — Arms Control Law.  Here’s the pitch from one of the inaugural posts:

As the name suggests, this blog will be devoted to discussion and analysis of arms control law subjects. I wanted to start this blog because all of the current blogs in the arms control area focus on either technical or politics/policy views of arms control. There has been no blog that provides a serious forum for rigorous discussion of legal issues relative to arms control, by arms control legal experts – until now!

The team of core bloggers at www.armscontrollaw.com is:

Professor Dan Joyner, University of Alabama School of Law

Dr. Marco Roscini, University of Westminster Faculty of Law

Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe

Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law

Professor Eric Myjer, University of Utrecht Faculty of Law

Professor David Fidler, University of Indiana School of Law

Professor Barry Kellman, Depaul University College of Law

Professor Dieter Fleck, Formerly of the German Ministry of Defense

Professor James Fry, University of Hong Kong Faculty of Law

That’s a pretty impressive list of contributors.  I’m looking forward to hearing what they have to say!

Two quick research-related items.  First, I’m pleased to report that the 2011 Digest of United States Practice is now available on the State Department website.  Here’s the description from today’s press release:

The digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2011 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past digests covering 1989 through 2010 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2011. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.

I’m a huge fan of the digests (indeed, my first post-JD book purchase was a rather expensive complete set of Moore’s Digest, which I’ve since supplemented with the ensuing sets and volumes). The fact that the digest is now available electronically and no longer requires large monetary outlays is a service the State Department should be proud of.  And, on a more substantive note — check out Chapter 4, which includes information on both the ACTA negotiations and early US briefs in the Bond litigation, which Peter Spiro has since blogged about.

Second, back in April I posted a list of on-line treaty databases that scholars and practitioners might benefit from using in their work.  Recently, Jim Keeley of the University of Calgary’s Political Science Department called to my attention his work over the last quarter century compiling more than 2000 bilateral civilian nuclear co-operation agreements.  Although full-texts of these agreements are not always available, in many cases his database contains source information that includes the treaty texts.  I understand from Mr. Keeley that his list has been made available in the nuclear non-proliferation and co-operation arenas for some time, but I’m pleased to report that he’s willing to have it available more widely.  So, for those readers interested in treaties in the nuclear non-proliferation and cooperation contexts, check out his database here.

At one time in the mid-1990s, it seemed like a week couldn’t go by without some large gathering of States seeking to hammer out the terms of a new multilateral treaty with aspirations for universal membership.  Such treaty negotiations have become a rarer phenomenon today with most meetings now emphasizing implementation of, and compliance with, existing treaties.  And where new norms are called for, treaties are no longer the default vehicle — many States now favor using political commitments (e.g., the Copenhagen Accord) as an alternative to the more traditional treaty form.

Still, from time to time, treaty negotiations and all the diplomatic machinations accompanying them return to center stage. July appears to be one of those times.  Starting today and running through July 27, the UN is launching a new treaty negotiation in New York for an Arms Trade Treaty.  The UN General Assembly first proposed such a treaty in December 2006 in its Resolution 61/89.  You can review a summary of the work of the preparatory committee since then here, including the Chair’s 2011 non-paper that outlines what an Arms Trade Treaty might look like.  A compilation of State reactions to the Chair’s non-paper is also available.

The pitch for an arms trade treaty is a simple one — there are treaties regulating almost every other good as it is traded across borders; as one pro-treaty NGO representative put it, “It is an absurd and deadly reality that there are currently global rules governing the trade of fruit and dinosaur bones, but not ones for the trade of guns and tanks”.  The argument goes on to suggest that this absence of regulations means that weapons can be traded to and misused by government forces or end up in the wrong hands of criminals, pirates, terrorists, etc., who then perpetuate death and destruction.

On the other hand, there are significant obstacles that may limit or obstruct any arms trade treaty. For starters, under the current rules of procedure, the treaty’s adoption will require consensus, meaning one State (think the US or Russia) could block it (it is possible though that a text supported by a sufficient number of States might be put before the UN General Assembly itself, which requires only a super-majority vote).  Second, as the UN’s Register of Global Reported Arms Trade indicates, there’s a lot of arms traffic (and thus money) at stake.  Thus, there is a wide array of stakeholders out there whose interests may not coincide with the sort of trade regulation that NGOs like Amnesty International envision.  Third, there’s a looming fight over whether to include ammunition within the treaty, which will obviously have a fairly significant impact on the proposed treaty’s scope.  And to the extent the treaty tries to regulate trade with specific actors (e.g., terrorists), there will undoubtedly be definitional and labeling issues that may make the treaty difficult to implement (for example, there is still no UN-accepted definition for terrorism).

As for the United States, the Obama Administration shifted course in 2009 and agreed not to oppose the current negotiations (which the Bush Administration had opposed in favor of better national controls).  Still, the US faces a few daunting issues in any arms trade treaty, most obviously, that any focus on arms, even one limited to regulating trade in arms, engenders 2nd Amendment concerns and domestic opposition from those who resist federal laws or regulations relating to guns (and this will be true I suspect even if the Obama Administration negotiates a text that it believes steers clear of any U.S. Second Amendment jurisprudence).  There’s also a question of continued US trade in arms to Taiwan and how the treaty would address whose law regulates the importation of weapons into Taiwan (with the possibility that the government of the People’s Republic of China might use any treaty to advance its position on Taiwan’s status).

In other words, there’s a lot on the table in New York this month.  And I’m sure this post has only scratched the surface.  So, I’d welcome reader input on other issues or views about the negotiations’ chances for success (or failure).  I’d also welcome any pointers to a daily digest of the negotiation’s progress along the lines of the invaluable IISD reporting service that serves such a wonderful updating and reporting role in the international environmental context.  I expect I’m not the only one interested in seeing how things progress.

Long-time readers may recall that I have a standing offer to employ my services as a technical consultant for any Hollywood producer or New York Times best-selling novelist looking for accuracy in popular portrayals of international law.  And we here at Opinio Juris regularly like to make hay of how popular culture interprets international law and international relations.   For our latest installment, consider Brad Thor’s recent novel, Full Black.  On the whole, it’s a well-written, fast-paced thriller (sufficiently engaging that I read the entire book during a cross-country flight yesterday).  The tone though is pretty preachy at times, with the various heroes being libertarian, vigilante former US military types versus a George Soros-type globalist villain who wants world government and will use an al Qaeda-type network to get there.  I was fine with all that, even mildly amused by some of the political dialogue among the characters.  But there was one passage that gave me pause:

Torture was something he had used only as an absolute last resort.  He loved to hear TV pundits and others cite the Geneva and Hague conventions.  Putting aside the fact that most of them had never read any of those treaties, the key fact that they all missed was that America’s Islamist enemies were not a party to these agreements.  What’s more, the conventions strictly forbade combatants from hiding and attacking from within civilian populations.  Lawful combatants were also required to appear on the battlefield wearing something, whether a uniform or even just an armband, identifying them as combatants — overgrown bears and high-water pants didn’t count.

The long and short of it was that if one party refused to sign on and follow the rules, it couldn’t expect any sort of protection from those rules.  And as far as Harvath was concerned, those who championed the extension of Geneva and Hague to Islamic terrorists were uninformed at best and apologists at worst.  Believing his country to be made up of good, reasonable people, he preferred to put the terrorist protectors in the former category.

Three things struck me on reading this.

First: once, just once, can’t a best-selling novelist do as much consulting and research on international law as they do on covert tactics and operations?  To be clear, I like talking to my ex-Navy SEALS friends as much as the next guy, but I don’t know that they have to be the exclusive repository of all knowledge for these sorts of projects.

Second, will I ever encounter a blockbuster, whether in book or movie form, that portrays international law as something patriots can believe in, as opposed to a barrier to some protagonist’s against-all-odds quest for justice and the American way?  Seriously, where’s the book on international law as a vehicle for American interests or even one where the plot depends on preserving the gains of some international compromise from which Americans and others all benefit?  I’m not asking that we lose the bang-bang shoot-em up that makes for good reading, but couldn’t international law be used to help move the plot along rather than as a target for snarky asides?

Third, there’s the claims about international law itself in the text.  Now, I have read and cited to Geneva and Hague law pretty regularly in my scholarship.  I’m also pretty familiar with the international legal system and how treaty law works.  And I certainly am no apologist for terrorism having served in the US State Department for some years.  But . . . well, let’s just say there’s an impressive mix of the accurate with the inaccurate in Thor’s text when it comes to when international law applies, to whom it applies, and how it applies.

So, here’s my summer pop-quiz for interested readers.  Identify what Thor’s protagonist gets wrong about international law, including the “Geneva and Hague Conventions”.  Feel free to chime in on what he does get right as well. And, for those of you best-selling novelists needing advice on international law for some new project, call me.  We should talk.

The Lotus Case is a pillar of international legal education.  Generations of international law students have studied the PCIJ’s opinion that Turkey had not acted in conflict with principles of international law in prosecuting a French national — Lieutenant Demons — for his role in the collision of a French steamer — the S.S. Lotus – with a Turkish vessel — the Boz Kourt – resulting in the death of 8 Turkish sailors and passengers.  The staying power of the Lotus decision is all the more remarkable in that its specific holding has long since been superseded.  The Court’s view that a ship is part of a State’s territory no longer holds.  The 1952 Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters of Collision limited jurisdiction over collisions on the high seas to the flag state or the state of nationality of the crew, a position reiterated in Article 11 of the 1958 Geneva Convention on the High Seas and now Article 97 of the 1982 UN Conventions on the Law of the Sea (“In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national“).

Now comes the case of the Enrica Lexie, which seems destined to test the lessons of Lotus and the international maritime law it engendered (the case even has its own Wikipedia entry).  The Enrica Lexie is an Italian-flagged tanker, which in addition to a crew, had a detachment of six Italian marines on board to deter pirate attacks.  On February 15, 2012, two of those marines shot and killed two Indian fisherman on board a fishing boat, the Saint Antony. The facts surrounding the incident are still contested.  The location of the shooting remains disputed, with claims that it occurred at 14 or 22 nautical miles off of India’s coast.  Moreover, the events leading up to the shooting are equally murky.  The marines and crew of the Enrica Lexie insist they only fired warning shots against what they believed was a pirate craft, which may or may not have been the Saint Antony or some as yet-unidentified third vessel.  They also insist they had first tried to use other signals to deter the craft’s approach.  In contrast, the fishing crew suggests they were waiting for the tanker to pass when they were fired on without provocation.

When the Enrica Lexie ended up in an Indian port a few days later (whether it did so voluntarily or under the direction of the Indian Coast Guard is disputed), the two marines were detained and eventually charged with murder under the Indian Penal Code. The two were subsequently released on bail on May 30. The next court hearing on the case is scheduled for tomorrow, June 18.

Although I’ve yet to review the Indian law directly, India appears to base its prosecution on domestic laws allowing jurisdiction where a crime is committed against Indian citizens on an Indian ship. Furthermore, India has relied on the SUA Convention as a basis for granting it jurisdiction.  That treaty — to which both India and Italy are parties, seeks to ensure appropriate legal action against certain offenses, including, under Article 3(1)(a) and (g), acts of violence against persons on board a ship likely to endanger its safe navigation that results in death or injury.  Article 6 further requires a State to “take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 when the offence is committed: (a) against or on board a ship flying the flag of the State at the time the offence is committed . . .”

Italy, meanwhile, has vociferously insisted that it has jurisdiction over the incident.  In April, Italy paid 10 million rupees to the families of each of the two victims to settle any civil claims.  But it continues to contest any Indian prosecution, saying that (i) the marines are elements of the Italian State and are entitled to sovereign immunity and (ii) that any prosecution should occur under Italian law given that they were on an Italian flagged vessel in international waters. An Italian prosecutor has opened her own investigation into the shooting.

In short, this case looks a lot like Lotus with Italy playing the role of France and India taking on the Turkish assignment.  There are significant differences, of course, in the facts of the two cases, and those differences may in the end lead to a different outcome.  That said, as I discuss below the fold, I do think both cases raise similar basic questions about the nature of the international legal order, which explains why we still study the Lotus 85 years on and why attention to the Enrica Lexie should not be limited to the populations of Italy and India.

That’s the question being asked this past week over at US News & World Report‘s Debate Club.  To answer it, US News assembled 7 experts who, with the exception of Bruce Schneier, replied in some form of the negative (see e.g. the responses of Herb Lin (no, or not yet), James Lewis (it’s not workable) Sean Lawson (it would be premature, unnecessary, and ineffective); Martin Libicki (focusing on international norms would be better); John Lindsay (it’s the wrong sort of solution); and Lawrence Muir (it’d be ineffective)).

Now, I’m a big fan of several of the contributors — I love Herb Lin‘s NAS work on the difficulties of distinguishing cyber-exploitations (aka espionage) from cyber-attacks (which don’t just steal information but harm the computer network or the infrastructure it supports); Martin Libicki‘s work on cyber deterrence is simply a must-read for anyone interested in thinking about military and State operations in cyberspace; while James Lewis and Bruce Schneier have well-deserved reputations for thinking deeply about cybersecurity issues.  And, the responses, short as they are, make for great (and occasionally) provocative reading.  That said, I’ve got three complaints about the set-up and the content of the so-called “debate” itself:

1) Where is the international law view?  Seven experts were invited to comment on whether or not a treaty is a good idea, and not one of them is an international lawyer?  That’s like asking whether IPv6 is a good idea and not including the views of a computer programmer.  Of course, other views are welcome, but it would certainly have helped the debate to include someone who works with treaties for a living.  And, to be clear, it’s not like international lawyers have uniform views on this issue — I’m pretty sure Jack Goldsmith is much cooler to the treaty form than I am, but I still think he’d offer different or additional rationales than the one’s posed so far.

2) Outside of Russia, does anyone really want a treaty on cyber arms control? The US News question suggests — and many of the responses assumed — that the only possible way a treaty can regulate cyberthreats would be through some analogue to a Cold War arms control treaty or a treaty banning cyberwar in the same way the Kellogg Briand Pact purported to ban warfare.  Now, it’s true Russia and a few others have pushed for such results, but those efforts have never really garnered much, if any, support in the West. Thus, I think focusing the debate onto this question misses the larger issue, namely, whether there should be some treaty or treaties dealing with cyberspace more generally?

Just a quick note of welcome to a new blog from my friends at the University of Toronto’s Munk School of Global Affairs.  As I noted a while back, Ron Deibert and others have been putting together a great annual interdisciplinary conversation about cyberthreats, the most recent of which was Cyber Dialogue 2012.  Now they’re moving the conversation into blog form.  The first post deals with recent discussions of the Flame virus and the need to emphasize its political ramifications. Given the existing Cyber Dialogue network, I’m confident this blog will benefit from great contributors and great readers.  I’m looking forward to adding it to my daily stack of must-reads.

As I mentioned a few weeks back, I’ve been collecting treaty clauses for my book, The Oxford Guide to Treaties, on everything from NGO participation in treaties to their denunciation.  In doing so, I tried to cast a wide net, sampling treaties from a wide variety of bilateral and multilateral contexts involving all sorts of States and all sorts of subjects.  As part of that effort, I’d wanted to include some treaties drafted under UNIDROIT‘s auspices.  But, when I went to do so, I encountered the following warning on UNIDROIT’s website for the Convention on International Interests in Mobile Equipment and its Protocol:

Unauthorised reproduction of these texts (other than for personal use) is prohibited: requests for authority to reproduce the texts should be addressed to the UNIDROIT Secretariat (info [at] unidroit [dot] org).

I’d never seen anything like this with a treaty instrument.  But I took the path of least resistance and e-mailed UNIDROIT for permission to sample some of the convention’s final clauses for the book.  I had a brief exchange with a UNIDROIT officer to clarify my request, which led to . . .  nothing. Radio silence.  Given other demands on my time, I decided the world could live without any UNIDROIT treaty clauses in my sample set, and I moved on to other treaties.

Still, looking back on it now several months later, I remain puzzled by the UNIDROIT pronouncement.  Was UNIDROIT asserting some sort of intellectual property in these treaties, and, if so, under what authority?  I know that, notwithstanding UN Charter Article 102, some States continue to conclude “secret” or “classified” treaties (both the US and the Netherlands have domestic statutes authorizing the practice), in which case readership is limited to only those within the respective State governments or IOs cleared to access them.  And, of course, there’s the idea that many treaties will not afford individuals the right to invoke the treaty in litigation, as opposed to treaties that do accord private rights of action.  But the UNIDROIT qualification is quite distinct from such issues.  It’s not that the treaty text is secret — indeed, you can download it on the UNIDROIT website.  And, the subject-matter of this treaty — international financing of mobile equipment — inevitably means that its terms regulate the rights and duties of not just States, but individuals and other non-State actors as well.

So, what does it mean for UNIDROIT to purport to prohibit “unauthorised reproduction” of this Convention and its Protocol?  There’s an exception for “personal use” but that confuses me too.  I can’t shake the image that it’s OK to print out a copy of the Cape Town Convention to display on my wall (because that’s the sort of thing I might do with a treaty, but really, who else would?).  But what if I wanted to reproduce a copy of it to provide to a client?  Or, what if I wanted to append it to a law review article on the Cape Town Convention itself? And, that’s not even getting into enforcement questions — namely, under what law is reproduction prohibited, and who would enforce it in case of a violation?

I’d be interested to know what others make of the UNIDROIT assertions of authority over distribution of treaties negotiated under its auspices.  Can UNIDROIT do this?  And, even if it can, is it a good idea to do so?

I’m just back from the U.S. Naval Academy and a great conference put on by the Stockdale Center for Ethical Leadership:  Warfare in a New Domain: The Ethics of Military Cyber Operations. Ed Barrett pulled together a truly impressive group of technologists, international lawyers, philosophers, ethicists, active duty military personnel and US Government officials to weigh in on existing cyberthreats and the appropriate legal and ethical frameworks for responding to them.  I may blog more of the details later, but here are three quick take-aways from our two day conversation:

1) Cyber is hot.  When I first started writing in this area, I frequently had to fend off charges that this was just fodder for international lawyers who happened to like science fiction.  We’ve come a long way since those days.  Cybersecurity is front and center in Congress, and cyberthreats and cyber-capacities have moved into the front seat in national security circles.  Although I’m not sure everyone agrees with the cyber-arms race idea, it is true that the technological capacity is on a steep upward trajectory and the actors involved are constantly expanding (I’m told, for example, that Zimbabwe is the latest in a long list of States to get together its own cyberforce).

2) We don’t agree on why cyber is hot.  Over the course of the conference, there were dissonant voices on what the cyberthreat really is.  First, there’s what we might call the “Digital Pearl Harbor” crowd — folks worried about, and looking to head off, a massive, large-scale cyberattack with significant effects on the civilian populace (think — shutting down the U.S. power grid).  A related view, are those clearly worried about how nation States will deploy cyber in armed conflicts, and what methods exist to deter escalation to such conflicts.  In contrast, there is a growing, and vocal group, who say that to focus on cyberwar or the most dangerous cyberthreats is to ignore the real problem — China.  This is the ”China’s eating our lunch” crowd, who blame cyberespionage by China and its proxies for the theft of petabytes of data, including intellectual property, business plans, R&D, etc from the private sector in what some call the greatest wealth transfer in history.  Finally, there are those who view the cyberthreat as more diffuse, although perhaps no less dangerous.  This view may best be summarized by the idea of a “death by thousand cuts”; that is, we shouldn’t expect drama in cyberspace so much as low-level but systemic attacks and threats that in the aggregate may significantly impact the United States as a nation.

3) We don’t know how law should deal with State cyber operations.  For starters, we are seeing (just as we have in the terrorism context) claims that lawyers and law are getting in the way; that States need to operate in this new environment without rules. For those of you who’ve not seen it, I recommend this recent exchange between Stewart Baker and Charlie Dunlap on the relative merits (and demerits) of this idea.

Then, even among those willing to concede a role for law and lawyers, there are significant differences of opinion on the relevant legal frameworks.  The US and like-minded States have taken the position that the Law of Armed Conflict (LOAC) can apply in cyberspace; Russia agrees, but insists other new norms must be applied to limit “information” that is destabilizing as well.  For its part though, China says they’re not sure the LOAC has any role to play at all, leaving the issue to law enforcement or organizations like the ITU.

Finally, even on the more specific legal and ethical issues that formed the core of the McCain Conference this year — namely military cyber operations — it seems we’re still trying to figure out how to analogize existing rules into cyberspace.  We’ve been doing that for some time now, but I must say I’m surprised to see how little progress has occurred.  For example, I was struck by how many reasonable people disagreed on the question of whether Stuxnet constituted a use of force or an armed attack.

Which brings me to my last point, and one that was quite contested at this conference — whether there is a gap between a prohibited use of force under UN Charter Article 2(4) and an armed attack sufficient to trigger an Article 51 right of self-defense.  Although I’d always understood that simply because something constituted a use of force, that didn’t mean that it rose to the level of an armed attack for self-defense purposes.  In other words, there is a gap between armed attack and force.  But at least one US government lawyer suggested at this conference that there is no such gap in cyberspace, and that this may even be the official US Government position for cyberspace.  I’d be interested in what readers make of this position, both as to the original kinetic understanding of the relationship between Article 2(4) and 51 and how it translates to cyber.  Simply put, are all uses of force in cyberspace armed attacks?

Last month, I was scheduled to attend Cyber Dialogue 2012 – What is Stewardship in Cyberspace? at the University of Toronto’s Munk School of Global Affairs.  I was quite excited to attend given the line-up of participants with a truly diverse set of backgrounds and areas of expertise.  Unfortunately, despite nearly nine hours in the Philadelphia airport, I never made it because of this. Indeed, not only couldn’t I fly to Toronto, over the course of the morning and early afternoon I learned that I couldn’t get to Detroit, Erie, Syracuse or even Elmira, New York.  The day reminded me of one my favorite childhood stories from the “Bert and I” albums – ‘You can’t get there from here’.

Despite my physical absence, I did, however, contribute a short essay, which is now available on the conference website and on SSRN.  Here’s the abstract:

The 2012 Cyber Dialogue Conference, hosted by the University of Toronto, asked the question ‘What is Stewardship in Cyberspace’? This essay pursues that stewardship inquiry through the lens of international law. Existing debates on the nature of cyberspace have emphasized its suitability for governance by social norms, domestic law, or some combination of the two. Questions of international law — to the extent they are raised at all — have been limited to asking how (and how well) existing rules analogize to cyberspace. But international law also clearly has something to say about defining what kind of resource cyberspace is (or might become).

International law has long divvied up the world’s resources into categories, with different forms of governance for different types of resources. These categories suggest that a stewardship approach to regulating cyberspace could work. But doing so requires a critical assumption: that cyberspace is a shared resource (or one where individual interests are so comingled as to defy separation). That vision of cyberspace is not, however, universally held. Some deny that cyberspace is “space” at all, or insist that its resources can be (and are better off) apportioned to individual States. In particular, any use of the “stewardship” label for cyberspace governance will generate opposition from those who prefer to label cyberspace as subject to governance based on sovereignty. A contest pitting stewardship against sovereignty is likely to forestall, if not derail, agreement on any particular governance structure for cyberspace. Such a fight is not, however, inevitable. International law does not limit governing frameworks to those accompanying stewardship or sovereignty, but offers a spectrum of ways to regulate resources. This paper undertakes a brief survey of these hybrid approaches and suggests that — instead of fighting over what we should call cyberspace — a discussion of what behavior we want to encourage (or prohibit) is a more appropriate starting point for future conversations about cyberspace governance.

Some of the other papers may also interest readers. I’m particularly partial to this one by Melissa Hathaway and John Savage, especially since John and I had many hours to discuss it while we both spent the day trapped in enjoying the fine offerings of Philadelphia’s International Airport.

Those of you who, like me, missed this year’s Federalist Society Symposium on National Security can now watch all of the events on-line here.  The event was held April 5 in DC and included a morning panel on terrorist-related detentions, interrogations and trials, a lunchtime address by former Homeland Security Secretary Michael Chertoff, and an afternoon panel on potential cybersecurity legislation. Participants included  Vincent J. Vitkowsky, Nathan A. Sales, Charles D. Stimson, Stephen I. Vladeck, Benjamin Wittes, Glenn M. Sulmasy, Jamil N. Jaffer, Sharon Bradford Franklin, Matthew J. Eggers, and Michael Vatis.