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Europe

Ukraine: Background, Sanctions, and the Sword of Damocles

by Chris Borgen

The BBC is reporting that dozens of people have died today in new fighting between police and protestors in Ukraine.  For a background to what is underlying the protests, see these posts concerning the struggle over the norms that will define Ukraine,  how Ukraine’s domestic disputes interact with Russian and European regional strategies, and the significance of the eastward spread of the protests and Russia’s technique of push-back against the norm-based arguments of the EU.

Some of these themes are echoed in the BBC report:

Ukraine seems be caught in a modern “Great Game”. Vladimir Putin wants to make Russia a global economic player, rivalling China, the US and EU. To that end he is creating a customs union with other countries and sees Ukraine as a vital and natural element in that – not least because of the countries’ deep cultural and historical ties.

The EU says assimilation and eventual membership could be worth billions of euros to Ukraine, modernising its economy and giving it access to the single market. It also wants to reverse what it sees as damaging infringements on democracy and human rights in Ukraine.

Many Ukrainians in the east, working in heavy industry that supplies Russian markets, are fearful of losing their jobs if Kiev throws in its lot with Brussels. But many in the west want the prosperity and the rule of law they believe the EU would bring. They point out that while Ukraine had a bigger GDP than Poland in 1990, Poland’s economy is now nearly three times larger.

While the immediate issue in the streets of Kiev is an end to the violence, the medium-term Western response may be sanctions against Ukraine, particularly targeting the assets of President Yanukovich and his allies.

But, hanging over all of this like the sword of Damocles is the concern over the stability of the Ukrainian state. The previous Opinio Juris posts, the BBC report linked-to above, and others have noted the sharp electoral and linguistic (Ukraine-speaking/ Russian speaking) divide between western Ukraine and eastern Ukraine. Some have voiced concern that Ukraine faces a possible civil war or a break-up of the country.  Edward Lucas of The Economist has written in an op-ed in today’s (February 20) Telegraph:

Perhaps the authorities will decide that they cannot crush the protesters and will draw back, meaning months of tension, jitters and uncertainty. Even then, Ukraine’s territorial integrity has been shattered, perhaps fatally. In the west, government buildings have been set ablaze. The region – the old Austro-Hungarian Galicia – was the site of a decade-long insurrection post-war against Soviet rule. If pro-Moscow authorities in Kiev try to crack down there, civil war looms…

Equally worrying is Crimea – site of the Charge of the Light Brigade 160 years ago – which could now be the flashpoint for another conflict with Russia, with far more devastating effects. The region is on the verge of declaring independence from Kiev (a move likely to prompt Russian intervention to protect the separatist statelet).

The BBC report sounds a more hopeful note:

Some commentators suggest this shows the country is liable to split violently across the middle. But others say this is unlikely – and that many in the east still identify as Ukrainians, even if they speak Russian.

As I mentioned in my previous post on Ukraine, the answer to the question of whether or not there is civil war or secession, depends in part on what the protestors in the eastern part of the country are protesting about.  If they are willing to continue on the path to closer integration with the EU and set aside closer integration with Russia, then the strand of hair keeps the sword suspended. If the Ukrainians in the east just want Yanukovich out, but still want to avert integration with the EU and increase integration with Russia, then the strand doesn’t necessarily break, but it does fray, as the normative conflict over the future of Ukraine will persist.

But while the question of civil war and secession depends in part on the severity of normative friction in Ukraine, that is not the only determinant. Also important is what role Russia will play in either further exacerbating the conflict or finding a peaceful solution. In September, Russia raised the specter of secessionism in Ukraine, specifically linking it to Ukraine’s signing the EU Association Agreement. Russia actively supports secessionist movements in Moldova and Georgia, two other countries seeking closer relations with the EU. Whether President Putin believes that preventing Ukraine from  signing an Association Agreement with the EU is important enough to push that country to war remains to be seen.

The issue for today is ending the violence in the streets of Kiev. But that is the first step in a long road to finding stability in Ukraine.

New Book: Lewis, The Birth of the New Justice

by Kevin Jon Heller

I rarely get excited about a new book before I’ve read it — but I’m excited about this one, Mark Lewis’s The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950. Here is OUP’s description:

The Birth of the New Justice is a history of the attempts to instate ad hoc and permanent international criminal courts and new international criminal laws from the end of World War I to the beginning of the Cold War. The purpose of these courts was to repress aggressive war, war crimes, terrorism, and genocide.

Rather than arguing that these legal projects were attempts by state governments to project a “liberal legalism” and create an international state system that limited sovereignty, Mark Lewis shows that European jurists in a variety of transnational organizations derived their motives from a range of ideological motives – liberal, conservative, utopian, humanitarian, nationalist, and particularist. European jurists at the Paris Peace Conference in 1919 created a controversial new philosophy of prosecution and punishment, and during the following decades, jurists in different organizations, including the International Law Association, International Association for Criminal Law, the World Jewish Congress, and the International Committee of the Red Cross, transformed the ideas of the legitimacy of post-war trials and the concept of international crime to deal with myriad social and political problems. The concept of an international criminal court was never static, and the idea that national tribunals would form an integral part of an international system to enforce new laws was frequently advanced as a pragmatic-and politically convenient-solution.

The Birth of the New Justice shows that legal organizations were not merely interested in ensuring that the guilty were punished or that international peace was assured. They hoped to instil particular moral values, represent the interests of certain social groups, and even pursue national agendas. At the same time, their projects to define new types of crimes and ensure that old ones were truly punished also sprang from hopes that a new international political and moral order would check the power of the sovereign nation-state. When jurists had to scale back their projects, it was not only because state governments opposed them; it was also because they lacked political connections, did not build public support for their ideas, or decided that compromises were better than nothing.

A book of this nature is much needed — the era between WW I and WW II has not received anywhere near enough attention from international criminal law scholars. I hope the book is good! (I will report back once I’ve read it.)

So How’s the Media Doing on Amanda Knox Reporting? Much Better Once They Started Quoting Me

by Julian Ku

Last March, I took the world media (and Alan Dershowitz) to task for some pretty poor reporting on the extradition issues raised in the Amanda Knox case.  Based on the reporting from yesterday’s conviction (again) of Amanda Knox in an Italian appeals court in Florence, I’m glad to report that the news coverage of the extradition issue (as well as Dershowitz’s analysis of it) has improved a great deal. I’ll admit I’ve been co-opted by the media a little, since I have given quotes to several publications about the case (click here for obnoxious self promotion).

What bothered me about the reporting last year was the insistence by news outlets and even several legal commentators that Amanda Knox was facing double jeopardy because she was facing a conviction for the same crime for which she was previously acquitted (see this quote here from CNN’s legal analyst Sonny Hostin as an example of this confusion).   There are three problems with this argument:

1) The US Italy Extradition Treaty does not actually bar extradition for double jeopardy in the U.S. Constitutional sense. All it does is bar extradition if the person being extradited has already been charged for the same crime in the state doing the extraditing.  For instance, the treaty would bar extradition to Italy for Knox only if the U.S. had prosecuted her for the Kerchner* murder.  Judge Friendly’s discussion in the 1980 Sindona v. Grant case of a similar provision in an earlier US-Italy Extradition treaty focuses solely on whether the US charges were the same as the Italian charges.  See also Matter of Extradition of Sidali (1995) which interpreted an identical provision of the US-Turkey extradition treaty.

2) The US Constitution’s double jeopardy bar does not apply to prosecutions by the Italian government (or any foreign government).  This seems pretty unobjectionable as a matter of common sense, but many commentators keep talking about the Fifth Amendment as if it constrained Italy somehow.  For obvious reasons, the fact that the Italian trial does not conform in every respect to US constitutionally-required criminal procedure can’t be a bar to extradition because that would pretty much bar every extradition from the U.S.  The U.S. Supreme Court decision in US v. Balsys seems to have settled this question with respect to the Fifth Amendment self-incrimination rule, and it should apply to double jeopardy as well.

3) In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways.  Knox was convicted in the first instance, than that conviction was thrown out on appeal.  That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial.  But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.  Moreover, it would essentially punish the Italian legal system for giving defendants extraordinary rights of appeal and tons more due process than they would get in the U.S.  If Knox had been convicted in the U.S, she could not have re-opened all of the evidence the way she did in Italy, and probably would have had a harder time getting her original conviction overturned.  So it seems crazy to call “unfair” a legal system which actually gave Knox a completely new chance to challenge her conviction.

Most media coverage seems to get these points (sort of).  I think they have done so because folks like Alan Dershowitz have finally read the treaty and done a little research (he now agrees with this analysis of the treaty above, more or less), and because the magic of the Internet allowed my blog post from last March to be found by reporters doing their Google searches.  So kudos to the Opinio Juris!    Improving media coverage of international legal issues since 2005!

One final note:  the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite.  He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite.  But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.  I would be surprised if the State Department refuses to extradite Knox, given the strong interest the U.S. has in convincing foreign states to cooperate on extradition.  But Knox appears to have lots of popular support in the US. This may matter (even if it shouldn’t).

 *The original post incorrectly called the murder victim “Kirchner”.

Ukraine: Popular Protests, Human Rights Reports, and the Push and Pull of Normative Competition

by Chris Borgen

Following up on my earlier posts on the normative aspects of the struggle concerning Ukraine and other former Soviet countries (1, 2, 3) in the run-up to, and the aftermath of, the EU’s November summit in Vilnius, where Ukraine had been expected to sign an Association Agreement with the EU.  However, the Yanukovich regime backed out at the last minute. I want to focus on recent developments in what analysts are calling the “post-Vilnius” atmosphere and what they reflect about how states and citizens compete over norms.

First, there is the spread of protests from the relatively  pro-EU western Ukraine into the relatively pro-Russia eastern Ukraine.  Electoral maps of Ukraine (1, 2) show the ideological division and why Ukraine is an example of what I’ve called a systemic borderland.  The fact that the anti-government protests moving eastward across the map may be a sign of an increasing tilt towards following the original path of the government in seeking closer association with the EU.  But it also may be nothing more that the populace being tired and angry of the political gridlock and motivated by pictures of anti-protestor violence in the western cities. In this latter scenario, the citizens in eastern Ukraine still want to be more closely tied with Russia, they are just sick of their government brutalizing their own people, for whatever the reason. News reports about protests are one thing, but understanding why people are protesting is very important in situations concerning whether or not domestic norms are in play.

I haven’t seen any significant data on whether there is a deeper normative shift taking place or whether the eastern protests are primarily a reaction to offensive government tactics.

The second development of note is the broadening of the Russia/ EU tensions. The New York Times article on this issue from the January 28 online edition is well worth a full read. Here are a few key points related to the normative aspects of the post-Vilnius tensions:

The future of Ukraine and disagreements over how Russia and EU have approached this are the drivers of the current international bickering. (Keep in mind the domestic tensions are also between the Ukrainian citizens and their government over how the Ukrainian government reacted to protests.)  The international tensions stem from a concern about how Russia perceives its future, vis-à-vis Europe. From the Times:

Russia, [Michael Emerson, the former EU envoy to Moscow] said, needs to show that “all its talk about a ‘common European house’ from Lisbon to Vladivostok is not just a slogan and that Ukraine can be comfortable with both the E.U. and Russia.”

In short: is there one Europe or two?  Will Ukraine be a bridge uniting Europe or a border between two normatively distinct Europes?  A related issue is whether Russia even wants to explore deepening ties with the EU. The Times continues… (Continue Reading)

Guest Post: Keitner–Jones v. United Kingdom and the Individual Responsibility of State Officials

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion.

Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar).

As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable. (more…)

Guests Posts on Jones v. United Kingdom

by Roger Alford

We are happy to announce that Opinio Juris and EJIL:Talk! will be providing reactions to the European Court of Human Rights decision in Jones v. United Kingdom over the coming days. The critical question in Jones was whether Saudi Arabia and Saudi officials enjoyed immunity from suit for allegations of torture. The Court denied petitioners claims, holding that “The weight of authority at international and national level therefore appears to support the proposition that State immunity in principle offers individual employees or officers of a foreign State protection in respect of acts undertaken on behalf of the State under the same cloak as protects the State itself.” (Para. 204).

Here at Opinio Juris, Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary. Over at EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case from across the pond. They all have written influential pieces on the relationship between immunity and human rights.

Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 2)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.]

My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area.

The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.”

In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails.

Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.

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Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

More on Ukraine: All Normative Geopolitics is Local

by Chris Borgen

As the political crisis in Ukraine over the government’s decision not to sign an Association Agreement with the EU passes its second week, this conflict and the positioning over other Russian “Near Abroad” countries (especially Armenia, Moldova, and Georgia) are good examples of the interrelationship of norms and geopolitical strategy.

The situation has been largely described in terms of Putin’s reaction to these countries planning on signing new agreements with the EU.  While that is an important part of the story, it is only part. As I described in previous posts (1, 2), this is also very much a story of domestic disputes over norms, ranging from domestic laws to cultural practices.

And, closely related to this latter aspect of normative geopolitics, is the importance of domestic politics in country that has significant ideological divisions.

This might actually be another iteration of Ukraine’s strategy of balancing both Russia and the EU by playing both sides and committing to neither. Political analyst Nicu Popescu has written:

In fact, Kiev chose not to choose at all and tried hard to maintain the status quo in Ukraine’s foreign and domestic policies. Yet in his bid to buy time, President Viktor Yanukovich inadvertently precipitated the biggest crisis of his presidency to date.

Consider in relation to this the New York Times report that “[a]t virtually the same time” that Ukraine cabinet of minsters announced suspension of preparations to further integrate with the EU:

President Viktor F. Yanukovich, who was on a visit to Vienna, issued a statement saying, “Ukraine has been and will continue to pursue the path to European integration.”

In a move emblematic of Ukraine’s often inscrutable politics, Mr. Yanukovich barely acknowledged the developments in Kiev and, responding to a reporter’s question about the pacts with Europe, said, “Of course, there are difficulties on the path.”

Was this an attempt to soften the blow that Ukraine is turning its back on the EU or some complex tacking to serve an immediate need (holding off Russian gas embargoes as the winter sets in) while deferring a longer term goal (increasing European integration)? Even Kiev-watchers seem a bit befuddled.

But that’s politics in a systemic borderland

(Continue Reading)

The Protests in Ukraine and Normative Geopolitics

by Chris Borgen

One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal

by Julian Ku

I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR.  But unlike Peter, I think it will get nowhere.  Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws.  Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)

In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends.  Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia).  A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.

With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider.   I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars.  Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France?  Better to at least commit the French to a deal.

From a foreign relations law perspective, “no spy” agreements are curious.  They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties.  The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.

Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements.  Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements.  He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc).  He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well.  I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.

In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”.  I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.

Russia, Moldova, and the EU: Realpolitik as Normative Competition

by Chris Borgen

Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR.  Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting aside years of negotiations with the EU and, under considerable pressure from Moscow, announcing that it would join the Russian-led Eurasian Customs Union. While the New York Times article focuses on the foreign policy and economic issues involved, these situations also exemplify the importance of law (both domestic and international) in international relations, because high politics in the “near abroad” is not about the formal acquisition of territory, but the adoption of norms. (For more on this theme see, also, this.)

The New York Times article uses the case of Moldova as an example of how Russia pressures its neighbors: threatening energy cut offs, banning key exports from Moldova, even bringing religion into play. In the case of Moldova, Russia also supports a separatist group that has seized control of Transnistria, the eastern-most section of the country. (As readers of this blog may know, I was part of a group of lawyers from the NY City Bar who wrote a report on the legal issues related to the Transnistrian conflict and, last year, part of an Open Society Foundations supported study comparing the conflicts in Moldova and Cyprus.)

But the heart of the matter is whether Moldova will become more fully integrated into “European” institutions (the EU, first and foremost) or reintegrate with revamped “Russian” institutions (the Eurasia Customs Union, for example). At times a state can be on one side or another of a normative border: Poland is part of the European normative order, Belarus is in Russia’s. In such cases, when normative boundaries coincide with national boundaries the situation is relatively clear. But the issue of which way Moldova will face is still being contested, somewhat within Moldova (particularly by the Transnistrian separatists) and more so by Russia. Thus, Moldova and certain other states in Russia’s near abroad (such as Ukraine) are borderlands between two normative systems, each state containing aspects of both.

When normative systems overlap and jostle within a country, the result can be normative friction. This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory, which international organizations a state may join, the recognition of national borders, and issues of non-intervention. Any issue that seems to favor one set of normative system over another can become symbolic of a larger struggle. Even when you put up and take down Christmas decorations can turn into a political crisis.

Although this has been the case in Moldova, Armenia, and Ukraine for years, Russia is increasing its pressure now because… (Continue Reading)