Author Archive for
Duncan Hollis

Ps&Is for DWIs – What should the Public Know?

by Duncan Hollis

In order for diplomatic missions to function, international law has long accorded diplomats and their families immunity from all local criminal laws.  And when a major crime occurs involving a diplomat, there’s often a lot of press attention on the case by virtue of the privileges and immunities (Ps&Is) involved.

But Ps&Is aren’t limited to allegations of rape or manslaughter, they extend to ALL local laws, often posing problems for the host State as it tries to police dangerous behavior while also complying with its international law obligations.  So, how do States deal with day-to-day misdemeanors or mid-level criminal activities?  In Australia, they write letters.  As this story in ninemsn notes:

More than two dozen foreign diplomats and consular officials have been warned about repeated or serious driving offences on Australian soil over the past three years.

The offences include drink driving, speeding more than 30km/h over the limit, running red lights, driving while talking on a mobile phone and not wearing a seat belt. But none of the offenders can be prosecuted or even lose their driving licence because of diplomatic immunity.

The offences are outlined in 26 warning letters sent by the Department of Foreign Affairs since 2010 to the heads of various foreign embassies and consulates about members of staff who had lost seven or more demerit points on their licence or who were involved in a serious driving incident that came to the attention of police.

One letter describes a diplomat who lost 15 demerit points from 11 speeding fines in just 15 months. Another refers to a diplomat who was deemed too drunk to continue driving after being intercepted by police on Canberra’s Commonwealth Avenue Bridge at 1am on a Sunday. Police only agreed to release him when one of his own passengers agreed to get behind the wheel and take him home.

The story links to the actual letters sent out by the Australian Foreign Ministry – see here.  I found the extensive redactions especially interesting — looking at the documents, you don’t know who did what or what government she or he represented.  The Australian Chief of protocol explains that disclosing such details could damage Australia’s good relations with foreign governments and “their willingness to cooperate and communicate with Australian government officials in the future.”

Hmmm.  Now, I’m a supporter of P&Is for their functional value — I truly believe they are a key cog in diplomatic machinery.  But, I’m less sanguine about the lack of transparency the Australian letters suggest.

Supreme Court decides to revisit Missouri v. Holland after all!

by Duncan Hollis

Just a quick entry (it’s late here in Tokyo) to note that the Supreme Court is going to hear the case of U.S. v. Bond, which, in effect, revisits the question of Missouri v. Holland and the scope of Congress’s power to implement U.S. treaty obligations.  Over at Volokh this past week, Nick Rosenkranz and Rick Pildes have been debating that constitutional question in some detail (see here for links to all their posts in one place).  I’ll have more to blog on this later, but for now, my plea is an editorial one.  I think Holmes’ opinion in Missouri is one of the most well-written in the pantheon of the Court’s great cases.  So, if the Court’s going to mess with it — and as I’ve said before I don’t think they should — I’d hope that the current Court can adjust Missouri with something of equal eloquence.

Hat-tip — SCOTUS blog

Still Waiting to Revisit Missouri v Holland?

by Duncan Hollis

I’m in Tokyo for the Spring semester teaching in Temple Law’s semester abroad program.  But that hasn’t stopped me from watching the Supreme Court, particularly its decision on whether or not to revisit Missouri v Holland via the case of Carol Anne Bond and the question of the scope of Congress’s power to implement U.S. treaty obligations (SCOTUS blog has many, if not most, of the relevant pleadings on-line here).

When I blogged about it last October, I’d assumed we’d know by now whether the Court was going to take up the case, or as I thought, decline certiorari.  Well, it’s now mid-January and we’re still waiting.  As John Elwood notes over at SCOTUS blog, the Bond case was relisted again this week — making it six times now for those of you keeping count.  I guess the best we can say about the continued delay is that it’s hard to imagine the Court continuing to relist it much longer (although who am I to say that they won’t go for lucky number 7 next).  In any case, it’s probably worth keeping a closer eye on the Court in the weeks ahead to see if it decides to grant or deny cert.  The latter decision could have especially large foreign affairs law implications in theory, if not in practice.

China invokes UNCLOS in claiming sovereignty over the Diaoyu/Senkaku Islands

by Duncan Hollis

I’m gearing up for a Spring Semester teaching at Temple’s Tokyo campus.  As part of my preparations, I’ve begun to read-into some of the maritime boundary disputes between China and Japan that have caused so much friction between the two nations of late.  Recent news reports have emphasized (i) China’s moves by air and sea to challenge Japanese control over waters surrounding what the Japanese refer to as the Senkaku Islands (or the Diaoyu Islands if you’re on China’s side) and (ii) how the new Japanese government may be more hawkish in responding to such measures.  So, perhaps it’s not surprising that China’s now also beginning to push its case legally, invoking UNCLOS’s provisions on delineating continental shelf rights beyond its 200 nautical mile Exclusive Economic Zone.

Specifically, UNCLOS Article 76 provides in paragraphs 7-9:

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

China submitted its initial continental shelf claim in 2009.  This past Friday, December 14, China provided an additional “partial submission” on its claims to the East China Sea.  Here’s the key take-away from that submission:

The geomorphological and geological features show that the continental shelf in the East China Sea (hereinafter referred to as “ECS”) is the natural prolongation of China’s land territory, and the Okinawa Trough is an important geomorphological unit with prominent cutoff characteristics, which is the termination to where the continental shelf of ECS extends.  The continental shelf in ECS extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured.

You can access the full text of China’s submission here (and, if you’re interested, you can also read  Japan’s earlier submissions or see here for the Japanese Foreign Ministry’s take).

I don’t hold out much hope that UNCLOS or the Continental Shelf Commission will actually determine a resolution to this on-going dispute.  But, I am hopeful that China’s move to legal argumentation may give both sides a forum in which cooler heads can prevail, in stark contrast to other existing fora where things have gotten quite heated (see, e.g., the Japanese government’s move to buy the islands, or the scrambling of military aircraft to respond to Chinese vessels transiting the territory).  In any case, the legal and political ramifications of this dispute clearly will bear close watching.

Knock. Knock. Who’s There? Best Treaty in The World

by Duncan Hollis

It’s that time of year when things get really busy in the law school environment (not to mention the pre-holiday press of government service, firm work, etc.).  So, for those of you looking for a momentary break from the memo-drafting, exam-writing, grading, article research, whirlwind of holiday events, etc., I submit to you — Jimmy Fallon on treaties.  The routine is a couple of years old, but it’s still pretty funny.  Of course, I take issue with the audience member who says the Treaty of Guadalupe Hidalgo is the “best treaty in the world.”  He clearly doesn’t know what he’s talking about.  It’s not even in the top five treaties of all time.

Hat Tip:  My colleague (and legal historian) Harwell Wells.

The Oxford Guide to Treaties Symposium: Evidence of “Secondary” Fragmentation

by Duncan Hollis

First of all, I need to say thank you to all the contributors to the current symposium on my book, The Oxford Guide to Treaties.  It’s quite common in academic circles to have symposia on “affairs of the day” (and, to be clear, those affairs often trigger very important issues like targeted killing, cyberwar, climate change, the EU fiscal crisis, etc.).  But, I think it’s equally important to step back from time to time and have conversations about the international legal system itself, of which treaty law and practice now forms a large part.  Thus, I’ve greatly appreciated the discussions over the last several days on whether reservations can be severed, the rule(s) of treaty interpretation, the increasing “publicness” of treaty functions, and the role of non-State actors in modern treaty-making.

In reading these posts, moreover, I was struck by how some of them suggest (albeit implicitly) a new way to think about the fragmentation of international law.  To date, we have tended to think about fragmentation in one of two ways.  First, we have the question of “normative” fragmentation, where two rules produced by different legal regimes conflict or compete with each other, meaning that a State has to choose to which rule to give priority.  We normally talk about this as the “trade and . . .” problem where WTO rules have been said to conflict with rules of international environmental law, international labour law, etc.  But, normative fragmentation is not limited to the trade context as witnessed by the question of what to do when UN Security Council resolutions on international peace and security conflict with EU Law in the Kadi case.  Second, fragmentation may also arise where the conflict is not between the rules but who applies them; that is, competition or conflict over which tribunal or court should be authorized to have the final say on which rules apply or what a particular rule means in a given situation.  The MoX case is a paradigmatic example of this inter-tribunal competition, with three different proceedings under three different normative regimes: an arbitral tribunal pursuant to the 1982 U.N. Convention on the Law of the Sea, dispute settlement under the Convention on the Protection of the Marine Environment of the North-East Atlantic, and proceedings before the European Court of Justice pursuant to the European Community and EURATOM treaties.

As I think about the law of treaties, however, I see the potential for a third type of fragmentation within international law, or what I’ll call “secondary” fragmentation.  My basic idea is that fragmentation is not limited to competition and conflict among primary rules, but can also occur with secondary rules.  Here, I’m employing H.L.A. Hart’s famous division of rules into primary and secondary categories.  Primary rules are rules of conduct — telling States and other subjects of international law what they are obligated to do (or not do).  Secondary rules, in contrast, are “rules on rules”, or rules that tell us how to form, interpret, amend, or extinguish primary rules.  When we talk about normative fragmentation, however, almost all the existing discussion has emphasized conflicts and competition among primary rules, e.g., should a WTO rule trump or defer to an international environmental rule?

In looking at the various posts on interpretation and Geir Ulfstein’s post on treaty functions, however, it seems there’s some evidence of a different kind of fragmentation emerging among the secondary rules of international law.  For example, Geir suggests at the end of his post that “Treaty law must be complemented by international institutional law”.  But treaty law and international institutional law are not required by any rule of international law to get along — it’s equally possible that the result produced by the law of treaties (say an interpretation of a treaty constituting an International Organization under VCLT Article 31) and international institutional law (say an interpretation of the same treaty employing the implied powers doctrine) could generate competing or conflicting results with respect to the same primary rule.  Catherine’s post makes this point more descriptively, noting how international institutional law has come to supplant the general law of treaties in the IO treaty context.  As with fragmentation among tribunals or primary rules, however, international law doesn’t tell us if this is the correct result.  Examples of secondary rules that are conciliatory to other secondary rules are relatively rare — although the VCLT does include a few examples with respect to IO treaties in Articles 5 and 20(3).  But, on the whole, the international legal order says little, if anything about whether one set of secondary rules should be accorded priority over another.

Moreover, I don’t think this competition over interpretative rules is an isolated case.  Although The Oxford Guide to Treaties does not explicitly flag this idea of secondary fragmentation specifically, there is evidence of it in several other chapters.  For example, although the VCLT’s rules on material breach purport to function differently than the law of state responsibility, Bruno Simma and Christian Tams’ chapter on remedies for treaty breach makes clear that these two sets of “secondary” rules are in competition with one another (and, moreover, that the law of state responsibility on countermeasures may be winning in the sense that it is those rules not the VCLT provisions on which States currently rely).  Malgosia Fitzmaurice’s chapter makes a similar point about tensions over exceptional circumstances where the law of treaties has doctrines — impossibility, and rebus sic stantibus — that may be threatened by the law of state responsibility’s doctrine of necessity.

The Oxford Guide to Treaties: An Opinio Juris Symposium

by Duncan Hollis

OGT CoverI’m extraordinarily pleased to be able to announce that today marks the start of the Opinio Juris symposium on my recently-edited volume, The Oxford Guide to Treaties (you can buy your copy here and there’s even a discount for Opinio Juris readers!).

The Oxford Guide provides a current and comprehensive guide to treaty law and practice. It does this in two parts.  First, it presents 25 chapters written by the world’s leading treaty-experts, exploring the world of treaties in five areas: (i) what a treaty is and who can make them; (ii) how a treaty is made (including the treaty-making process, signature, provisional application, deposit, registration, and reservations); (iii) how treaties are applied (including their territorial reach, third party rights and obligations, amendments, domestic application, succession, treaty bodies and conflicts); (iv) the rules on treaty interpretation generally and with respect to treaties on human rights and international organizations; and (v) how to avoid or exit a treaty commitment (including questions of validity, remedies for breach, exceptional circumstances, and termination). Second, the book pairs these explanations of existing rules and practice with examples of how modern treaties are drafted. Thus, the last section of the book includes 350 treaty excerpts on 23 treaty topics ranging from how to deal with multiple language treaty texts to the use of simplified amendment procedures (for those looking for a longer introduction to the project, see here).

Since the book is consciously treatise-like in its coverage, this symposium has opted for a slightly different format than the norm.  In lieu of comments on the book’s thesis, over the next few days we will use The Oxford Guide’s coverage as a launching pad for a discussion of some of the most pressing treaty questions confronting international lawyers.  The current schedule is (roughly) as follows:

(1) Today will focus on a discussion of reservations and other unilateral statements, with particular attention to the International Law Commission’s Guide to Practice on Reservations to Treaties

(2) Tomorrow, we will turn to treaty interpretation, particularly the phenomenon of evolutionary or “dynamic” interpretation; and, after a weekend respite,

(3) Monday, we will discuss the variety of functions treaties perform, such as their increasing “publicness”, the role of non-state actors in modern-treaty making, as well as any final comments that participants care to make.

In terms of participants, I’m pleased to have a truly distinguished group of experts participating in this on-line symposium.  Several of them are returning to the fold in the sense that they already contributed their time and expertise to The Oxford Guide itself, including Ed Swaine (who wrote the chapter on Reservations); Geir Ulfstein (who wrote on treaty bodies and regimes); Richard Gardiner (who wrote on the Vienna Rules on treaty interpretation); Catherine Brölmann (who wrote on interpreting constitutive treaties of International Organizations); Başak Çalı (who wrote on human rights treaty interpretation); and Christian Tams (who co-authored with Bruno Simma the chapter on remedies for treaty breaches)

In addition, I’m honored to have a group of very distinguished outside experts lend their voices to the conversation. I’m particularly pleased (and grateful) to have Harold Koh, the Legal Adviser to the U.S. Department of State, offer some thoughts on treaty reservations.  I’d also like to welcome three other commentators — Jean Galbraith, Marko Milanovic and David Stewart — and thank them for making the time to participate in these discussions.  I’m hopeful that one or more of my fellow Opinio Juris contributors may weigh in from time to time as well.

Altogether, we’ve got a set of really interesting topics and a great bench of experts to discuss them. I, for one, am really looking forward to the conversation.

The Oxford Guide to Treaties: An Opinio Juris Symposium

by Duncan Hollis

Attentive readers will note our calendar had indicated that we were supposed to start a new symposium today on The Oxford Guide to Treaties.  It appears, however, that we are not immune from hurricane Sandy’s effects.  I’ve received several requests for postponement from participants given this week’s events and I’m also told that much of New York City and other areas in the mid-Atlantic remain off-line and thus would not be able to read along or participate. Thus, after talking it over with a few of my co-bloggers, we’re postponing the symposium for 1 week. So, instead of tomorrow, we’ll start next Thursday (Nov. 8) and run the symposium thru the following Monday (Nov. 12).  So tune in next Thursday when we’ll begin a conversation on various questions of treaty law and practice, including (a) reservations; (b) dynamic and evolutionary treaty interpretation; (c) the new functions treaties perform; and (d) the role of new actors in the treaty-making process.

Breaking News: The Fourth Restatement on the Foreign Relations Law of the United States

by Duncan Hollis

I’ve long wondered whether and when the American Law Institute (ALI) might try to update its 3rd Restatement on the Foreign Relations Law of the United States.  Since its 1987 publication, the two-volume set, culled together under the leadership of Professor Lou Henkin, has had a tremendous impact.  It has been a frequent resource for U.S. courts and American international lawyers alike.  I recall vividly how often I used it in my first few years in private practice and its prominent place on my bookshelf once I decamped to the U.S. Department of State.  At the same time, part of the Restatement 3rd‘s visibility lies in the critiques it later generated at the hands of what Peter Spiro dubbed the “New Sovereigntist” movement.  Beginning with the work of Curt Bradley and Jack Goldsmith, the 3rd Restatement has been viewed as the conventional doctrine against which all other constitutional positions in foreign relations law may be measured.

So, it’s with great interest that I learned today that this past weekend the ALI announced plans to begin work on a new 4th Restatement on U.S. Foreign Relations Law.  My first question was who could shepherd such a project?  After all, on many of the current Restatement‘s positions there exists a stalemate between staunch defenders of Henkin’s original pronouncements and revisionists who insist he and his cohorts got it wrong (or, alternatively, that some newer developments require revisiting the original doctrine).  What the ALI did, however, was to appoint not one, but two “coordinating reporters” — Sarah Cleveland and Paul Stephan.  Both are influential and well-respected scholars. And although I would hazard to say that some of Paul’s work exhibits revisionist tendencies while some of Sarah’s writing may be closer to the spirit of Henkin’s earlier work, I think both are independent thinkers who should be expected to work seriously and thoughtfully on the ALI’s core mission — which is to say primarily what the law is, rather than what they would each like it to be.

The ALI Council also approved three topics for immediate work and assigned eight reporters to it:

Jurisdiction and Enforcement: William Dodge, Anthea Roberts, Paul Stephan

Treaties: Curtis Bradley, Sarah Cleveland, Edward Swaine

Sovereign Immunity:  David Stewart, Ingrid Wuerth

My understanding is that ALI hopes to have drafts of each of these portions ready for review in fall 2013 by Advisers and ALI Members.  Decisions on who those advisers will be is expected in early 2013.  Moreover, based on ALI precedent, the ALI Council also approved a group of “Counselors” for the entire project.  And, that too, is a pretty impressive group: John Bellinger III, Daniel Bethlehem, David Caron, Joan Donoghue, Conrad Harper, Harold Koh, Carolyn Lamm, and David Rivkin.

One can only imagine the machinations that went into selecting these Counselors, not to mention the reporters themselves.  But I will say on first glance there is some balance attempted in terms of scholars from all sides of the foreign relations and international law arenas.  Moreover, there is a heavy dose of practical experience in both groups, and a clear tendency to favor those with experience working for the U.S. State Department (among the reporters and Counselors, I count at least 10 who spent time in “L” — the State Department Legal Adviser’s Office — or led it).

I was elected to ALI last year, and as such, I guess I will have the privilege of being able to look at and comment on drafts of the new Restatement as they come forward.  I have no doubt, moreover, that this is a bit of a daunting task given the academic dissension on various points, not to mention the prospect for politically-charged disagreements.  Still, I was pleased to hear from Paul Stephan when I asked him about the prospects for success that he feels quite positive that a 4th Restatement is achievable.  As he put it:  “There will be controversy and disagreement, but that is a lawyer’s life blood. My hope is that, at the end of the day, there will be somewhat more clarity, and a bit less confusion, in this area of law than currently exists.”

All in all, an interesting development and one that will bear close watching.

Harold Koh: Twenty-First Century International Law Making

by Duncan Hollis

Earlier this week, Harold Koh gave a speech.  And it wasn’t about conflicts, drones, or cyberwar, topics that have dominated the attention of international lawyers in recent years.  Rather, Koh’s speech was a meditation on the processes of international law-making that confront the State Department on a daily basis.  It was, simply put, a survey of the current international legal landscape from the U.S. perspective.

Koh reviewed the formal U.S. treaty-making process, citing past victories like the New START Treaty and the Obama Administration’s continued push for Senate advice and consent to the 1982 UN Convention on the Law of the Sea and the more recent Disabilities Convention.  There was also a cogent defense of the use of congressional executive agreements, with reference to controversies over the Anti-Counterfeiting Trade Agreement (or ACTA), where frankly I find myself aligned with the federal government in not seeing what the fuss is all about (or, rather, if there’s a fuss, it’s one so fundamental as to put into doubt two centuries of Congressional pre-approval of U.S. treaty-making).

Beyond this survey of formal international lawmaking, Koh also emphasized compliance, including a nod to his prior scholarly work (and the C-175 process, on which I spent a good deal of my own time at the State Department):

In my academic work, I have described a pervasive phenomenon in international affairs that I call “transnational legal process:” that international law is primarily enforced not by coercion, but by a process of internalized compliance. Nations tend to obey international law, because their government bureaucracies adopt standard operating procedures and other internal mechanisms that foster default patterns of habitual compliance with international legal rules. When I became Legal Adviser, I found that this is even truer than I thought. For example, most people are unaware of the so-called “C-175” process, named after a 1955 State Department Circular setting out a standardized procedure for concluding international agreements. The few academics who have ever noticed that process often assume it is nothing more than a rubber stamp. But having now seen it from the inside, I can tell you that the process is exhaustive and designed to ensure that all proposed U.S. international agreements — even if concluded by a different agency — are subject to a rigorous legal and policy review by the State Department before an any agreement is negotiated and concluded. Through this process, the State Department plays the same kind of clearinghouse role with respect to international agreements that OMB plays with regard to federal regulations. The C-175 process ensures not only that we have the legal authority to conclude the agreement in question, but also that every agency’s lawyers fully understand the nature of the domestic and international legal obligations we will undertake, so that we can accurately evaluate whether the United States will be able to comply with its new international legal obligations.

 

On the subject of compliance, Koh highlighted that the Administration has not yet given up on complying with the ICJ’s Avena judgment. And in terms of customary international law (CIL), Koh reiterated the U.S. view that major parts of the Vienna Convention on the Law of Treaties and the 1982 U.N. Convention on the Law of the Sea now codify CIL.

But, Koh’s talk also went well beyond the “formal” sources of international law, exploring the range of alternatives to treaty-making.  He discussed U.S. political commitments, including cooperative arrangements with the Arab League, the Copenhagen Accords, and the recent Washington Communique on nuclear security.  Koh dubbed these instruments as “layered cooperation”:

In any given area of international cooperation, the choice between international agreements and non-legal alternatives is not binary. Instead, the legal and the non-legal understandings are layered, and operate on different levels. Take for example the Arctic Council, a group of eight Arctic States — Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States — which has emerged as an impressive example of a non-legal mechanism to facilitate sustainable development and international cooperation in the Arctic. The cooperation that takes place within the Arctic Council — generally through non-binding means — is layered on top of a legal backdrop of the Law of the Sea Convention, and the customary international law it reflects, which answer important questions about sovereign rights and jurisdiction in the Arctic. Now notice that the Council is not a formal international organization; it was not set up by an international agreement, and the majority of its work is not legally binding. But this has not detracted from — and has probably even enhanced — its success in facilitating robust international cooperation among the Arctic States at all levels, ranging from foreign ministers to bench scientists.

Koh’s speech also emphasized the increasing important role assigned in international lawmaking to non-State actors.  He ended, moreover, on a high note:

Make no mistake: this is not your grandfather’s international law, a Westphalian top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. The story is neither simple nor static. Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.

Now I am sure that Hugo Grotius had it good in his time. But believe me: there has never been a more challenging and exciting time to be an international lawyer or an international lawmaker. I have been lucky to spend my whole career steeped in this heady environment as a lawyer, scholar, advocate and public official. To be sure, there will always be challenges. But still, I find no belief more contagious than the simple, idealistic conviction, shared by so many, that even in a new millennium, it is still possible to aspire to help build a vibrant world order based on law.

For those who want to see the whole speech — check it out here — it’s worth the read.

[UPDATE:  Marty Lederman writes in with a link to a video of the speech for those interested in watching it.]

Progress Reports from the Cyber Norms 2.0 Workshop

by Duncan Hollis

As Peter’s post yesterday noted, there’s a growing push to fundamentally re-align cyberspace governance via amendments to the ITU Regulations, which are set to be negotiated in December in Dubai.  I’m not sure that the ITU is up to the task.  But I do agree that the time is ripe for States and other stakeholders to agree on first principles or “norms” for cyberspace (note:  although many think cybernorms need to come in the form of a treaty, I’m not sure that is a practical, let alone a good, idea — to me, it seems like a first step would be to agree on the norms and then those doing the agreeing can figure out what vehicle best serves their distribution).

In academic and non-academic circles alike, there’s been a rash of attention to the question of norms and rules for cyberspace. Last month, Harold Koh made headlines as part of a conference for government officials on cyberspace.  I was at a conference at Penn Law on Monday discussing the status of international law and ethics with respect to both cyberwar and cyber-attacks falling short of the war threshold.

For the last two years, moreover, I’ve been participating in the MIT/Harvard/Toronto Workshops on cyberspace organized by Ronald Deibert of the University of Toronto, Roger Hurwitz of MIT, and Joseph Nye of Harvard. The workshops are truly inter-disciplinary conversations among political scientists, technologists, lawyers, government officials, etc. all of whom have varying levels of expertise on cyber-related topics.  The workshops aim to produce White Papers that States and others may use in preparation for conferences like the one that will occur in Dubai in December.  The thinking is that, just as conversations between academics and government officials developed and improved norms for other forms of technological innovation (think nuclear deterrence theory), so too might academics and government officials work together to articulate a set of shared norms for cyberspace.

The White Papers from the most recent Cyber Norms 2.0 workshop (held at MIT in September) are now available here (last year’s inaugural work product is here).  I authored the report on the Laws of Armed Conflict, but interested readers should also check out the other six panel reports on topics ranging from assessments of Western and non-Western approaches to cyberspace to characterizations of cyber incidents.

I’m hopeful both that these sorts of “big thinking” workshops will continue in the months and years ahead and that over time these efforts might eventually assist in the (much needed) effort to find some common ground on how we want to think about cyberspace governance and what sorts of behavior we want to encourage and discourage there (an e-SOS anyone?).

Debating the Need to Revisit Missouri v Holland

by Duncan Hollis

I want to briefly interrupt the LJIL symposium to flag the fact that the Bond case is back on the U.S. Supreme Court’s radar screen and with it the prospect that the Court may revisit one of the most canonical cases of U.S. foreign relations law: Missouri v. Holland. The facts are a bit lurid — Carol Anne Bond discovered that her husband had impregnated a close friend, leading her to harass the friend, including the placement of caustic substances on objects the woman touched, which caused her to suffer minor burns.  Bond was indicted for violating 18 U.S.C. §229, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans”.  That statute was enacted to implement U.S. obligations under the Chemical Weapons Convention.

The Supremes have already considered Bond’s case once before, ruling in 2011 that the Third Circuit was wrong to deny that Bond had standing to challenge her conviction on 10th Amendment grounds and remanding the case to consider that defense.  As Peter blogged in May, the Third Circuit then upheld her conviction on the grounds that the Treaty Power afforded Congress powers to implement a treaty that it could not exercise on its own under Article I (in other words, the decision basically tracks Missouri‘s holding).  However, both the Majority and one of the concurrences specifically asked the Supreme Court to clarify Missouri‘s boundaries.

Bond has since filed a petition for writ of certiorari. Over the last several weeks, the amicus briefs have begun to arrive.  For example, the Cato Institute filed this brief urging the Court to take the case (counsel includes Nick Rosenkranz who’s spent a lot of time critiquing Holmes’ Missouri decision and/or Louis Henkin’s interpretation of it).  On the other side, Yale Law School’s Center for Global Legal Challenges has this amicus brief urging the Court not to take cert (and includes Oona Hathaway who’s spent a great deal of her time examining the treaty power’s scope from a more nationalist orientation)  The Yale brief cites my own earlier work, which suggested the Court would not re-engage with Missouri and flagged the then-little noticed phenomenon where the Executive had adopted various ways to police its own exercises of the Treaty Power, suggesting a narrower reach for Missouri than its text might suggest.

I don’t know whether my earlier prognosticating that the Court will not re-visit MIssouri still stands (I certainly didn’t envision a chemical weapons prosecution of a jilted wife when I wrote it).  But I do think the Court’s consideration of the cert question should assess all the non-judicial law-making on the treaty power front that occurred both before and after Missouri as well as the implications of that practice to establish alternative avenues to control the scope of the Treaty Power independent of any judicial safeguards of federalism.  I suspect, moreover, we’ll know soon enough if that practice is sufficient to deter (or defer) the Court’s attention from Holmes’ famous opinion.