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Oh Britain, Where Art Thou? (The View from the EU’s Eastern Neighbors)

by Chris Borgen

As the news of the Brexit vote sinks in, commentators are considering the various longer-term effects. I want to highlight the how this may look to the EU’s neighbors to the east, especially countries such as Ukraine, Moldova, and Georgia that have recently signed Association Agreements with the EU. Ukraine and Moldova, in particular, have electorates that are divided over whether to integrate more closely with the EU or with Russia’s nascent Eurasian Economic Union.  The debate over EU integration sparked Ukraine’s Maidan demonstrations and the subsequent separatist conflict.  All of these countries faced significant pressure from Russia to reject association with the EU. These countries became effectively a borderland between two systems, those of the EU and of Russia. And Russia, in particular, has treated this as a zero-sum struggle over the futures of these countries that had once been part of the USSR. So what happens in the EU is of critical concern to its neighbors to the east.

And what are the EU’s neighbors seeing today? There are already calls by some for exit referenda in other EU countries such the Netherlands and France. The 2017 French Presidential election is increasingly looking like it will be an important barometer for the future of the Union. News feeds are abuzz with concerns about whether Brexit is the start of a domino chain that will tear the EU asunder.

However, some commentators have suggested that, although there will be a formal exit of the UK, there will actually be ongoing deep coordination and low trade barriers between Britain and the EU. A technical exit but not an existential crisis. It is too early to predict with confidence which of many scenarios will come to pass.

But the fact that the EU’s stability is more uncertain today than it was yesterday will affect regional politics. In the U.S., you might have people looking nervously at the Dow but that is nothing compared to the concerns in Kiev, which is embroiled in a secessionist conflict in part because it chose to bet on the EU being an important part of the future of Ukraine.

For their part, politicians from the EU’s eastern neighbors countries are reacting to Brexit with–how shall I say it?—a stiff upper lip. Interfax-Ukraine reports:

First Deputy Speaker of the Verkhovna Rada of Ukraine Iryna Gerashchenko and Deputy Prime Minister for Reintegration of Moldova Gheorghe Balan have discussed the result of the referendum on Britain’s exit from the European Union (Brexit) and its consequences for both countries.

“Ukraine and Moldova are disappointed with the results of the referendum and are concerned about the growing number of eurosceptics in the EU. However, Ukraine and Moldova are committed to the path of European integration and reforms,” Gerashchenko wrote on his Facebook page on Friday afternoon following the meeting.

Brave face notwithstanding, Ukraine and other countries along the EU’s eastern border that decided to sign Association Agreements with the EU will likely need to be reassured that they chose wisely. Some Members of Ukraine’s Parliament are concerned that Brexit will mean the EU will become inward-focused and delay the implementation of aspects of the Association Agreement that came so dear.

The EU will need to think clearly and act decisively not only about how it will manage the divorce with the UK but also about its strategy regarding its eastern neighbors—including both the states of the former USSR and Turkey as well.

For a deep-dive into the EU’s recent policies towards its neighbors (written before Brexit), see this paper from the EU’s Institute for Security Studies.

Introducing the First Multi-Blog Series on the Updated Geneva Conventions Commentaries

by Jessica Dorsey

[This post is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.]

The updated Commentaries are an interpretive compass emerging from more than 60 years of application and interpretation of the Geneva Conventions. Over the rest of 2016, several academic blogs are hosting a joint series that brings to light the significance of the updated Commentary on the First Geneva Convention.

In March, the ICRC released an updated Commentary on the First Geneva Convention of 1949 (GCI). This is the first instalment of six new Commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977, to the 21st century.

This blog series is co-hosted by Intercross, the blog of the ICRC in Washington D.C., the ICRC’s new Humanitarian Law & Policy blog and us here at Opinio Juris.

This multi-blog venture is divided into three episodes, each of which focusing on a GCI provision – or a theme within a set of provisions – whose application and/or interpretation have evolved and give rise to debate among States and commentators. For each phase, the three blogs will invite one author to either initiate the conversation or act as respondent. The three episodes are respectively scheduled for this summer, fall and winter 2016.

The blogs will be regularly updated with past and upcoming posts, along with an evolving publication calendar. To kick off the series, Humanitarian Law & Policy will invite Jean-Marie Henckaerts, Head of the Update Project at ICRC, by locating the GCI Updated Commentary into the legal landscape and applying the rules on treaty interpretation to the Geneva Conventions. Expect the post by the end of this month on this website, or get it directly in your mailbox.

Bringing the Pictet’s Commentary’s Legacy Into the 21st Century

In 2011 the ICRC embarked on a major project intended at updating its original Commentaries, drafted under the general editorship of Jean Pictet in the 1950s (for the Conventions), and of Yves Sandoz and other ICRC lawyers in the 1980s (for the Protocols).

Since their publication, these commentaries have become an authoritative interpretative guide for States, armed forces, national and international courts, academics and civil society. However, in order to remain relevant, they needed to be updated to reflect more than 60 years of subsequent developments in applying and interpreting the Geneva Conventions. With the release of the Commentary on GCI, an important milestone has been reached, with key findings related to GCI-specific articles but also common articles governing the scope of application of the Conventions and their enforcement.

The initial edition of the Commentaries mostly provided historical context for the adoption of the Conventions and their Additional Protocols, drawing on the negotiation process of the treaties, as well as practice prior to their adoption. In this respect, they retain their historic value. The updated Commentary builds on and preserves those elements that are still relevant, while incorporating more than six decades of application and interpretation of the Conventions – 40 years in the case of the 1977 Additional Protocols. Capturing the evolution of warfare and humanitarian challenges, as well as technological and legal developments, led to many additions but also updates.

The multi-faceted nature and complexities of today’s armed conflicts have also resulted in more elaborated interpretations on the scope of application of the law in armed conflict. The new Commentary aims to capture key elements of the ongoing debate about where, when, and to whom IHL applies, setting out the view of the ICRC while also indicating other interpretations.

The Commentary provides important clarifications on key aspects of the legal regime governing the protection of the wounded and sick in armed conflict. On the obligation to respect and protect the wounded and sick, it addresses issues ranging from taking their presence into account in a proportionality assessment when planning attacks, to the general obligation to have medical services in the first place. On the protection owed to medical personnel, it gives details on the conditions under which such protection may be lost. The new GCI Commentary also captures changes in the regulation of offers of services by impartial humanitarian organizations, on the dissemination of IHL, and on criminal repression. It also adds a number of subject matters, such as the prohibition of sexual violence and non-refoulement.

For more on the updated Commentaries project, see the Humanitarian Law and Policy’s post here.

Congratulations to Duncan Hollis on His Election to the Inter-American Juridical Committee

by Chris Borgen

We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which

…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.

It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.

No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.

With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee.  Congratulations!

The Return of the Emoji: Flags, Emoji, and State Recognition

by Chris Borgen

I thought I had largely said what I had to say concerning emojis and international law in my previous post. SRSLY. 😉

But then John Louth, who knows of my interest in issues of recognition and non-recognition of aspirant states, pointed out this article from Wired which discusses, among other things, the issue of which national flags are awarded emoji and which are not. So let us return to the emoji for another post.

Consider the following passage for the Wired article:

…the most contentious emoji arena isn’t food, or even religion. It’s flags. From October 2010 until April 2015, there were a limited number of flag emoji, including the Israeli flag—but notably, no Palestinian flag. When the Palestinian flag was added—along with some 200 other flag emoji—it was cause for celebration.

Palestine exists in an unusual limbo in international law. It is recognized by some countries as Palestine, and by others as the Palestinian Territories.

“Technology has been used as a weapon to revolutionize the Middle East, and now it is being used as a weapon to legitimize Palestine,” wrote Palestinian columnist Yara al-Wazir at Al Arabiya earlier this year. “Introducing the Palestinian flag as an emoji is more than just a symbolic gesture.”

The article then goes on to note that some national groups, such as the Kurds, do not have flag emojis.

So, how does the Unicode Consortium, a non-state actor, decide whether to assign a symbol for the flag of an entity claiming to be a state, especially if that statehood is contested? (For more on the Unicode Consortium, please see my previous post.) The Consortium’s FAQ explains the criteria:

The Unicode Standard encodes a set of regional indicator symbols. These can be used in pairs to represent any territory that has a Unicode region subtag as defined by CLDR [Common Locale Data Repository], such as “DE” for Germany. The pairs are typically displayed as national flags: there are currently 257 such combinations. For more information, see Annex B: Flags in UTR #51.

In other words, the Consortium’s regional indicator symbols are based on the International Organization for Standardization’s (ISO’s) two-letter country codes.

As described on its own website, the ISO is:

an independent, non-governmental organization made up of members from the national standards bodies of 162 countries. Our members play a vital role in how we operate, meeting once a year for a General Assembly that decides our strategic objectives.

Our Central Secretariat in Geneva, Switzerland, coordinates the system and runs day-to-day operations, overseen by the Secretary General.

It also describes itself as a network of national standard–setting bodies.  With its combination of a permanent secretariat as well as a bureaucratic network, the ISO has aspects of both an intergovernmental network and an international organization.  (See more on ISO governance, here.)

To receive a top-level country code from the ISO, an entity must be: (a) a United Nations member state, (b) a member of a UN specialized agency, or (c) a party to the Statute of the International Court of Justice.

Thus, the Unicode Consortium’s decision-making process to decide whether or not to assign a glyph for a country flag is based on the decision by the ISO, an organization with significant national government involvement, on whether or not a territory receives a country-code. The ISO’s decision is itself reliant on the aspirant entity’s relationship to the United Nations.

In short, the ISO has a two-letter designator for Palestine (see, for example, this ISO newsletter [.pdf]), so the Consortium by its own rules can (though does not have to) assign a code for the flag of Palestine. No ISO code for a Kurd state; no Kurdish flag emoji. And all of these stem from degrees of relationship of these entities to the UN.

In sum, a non-state consortium is basing its decisions on a state-based regulatory network (the ISO), which in turn is using criteria based on an intergovernmental organization (the UN). The result in the case of flag emojis is that the Consortium unlikely to assign a flag where the  ISO is not willing to assign a separate country code, and ISO will not assign such a code without first looking to UN practice.

Receiving a flag emoji is not the recognition of a state by another state or even by an interstate organization. Nonetheless there are many hurdles to the designation of a flag emoji. Given the significant state interest in issues of recognition, explicit or implied, this is not surprising.

And if readers find other interesting overlaps of the Unicode Consortium, emojis, and international law, please let me know!

Emojis and International Law

by Chris Borgen

Emojis: love them or hate them, you can’t seem to get away from them.  🙂  The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like.  And tomorrow, June 21, we will have 71 new emojis to play with.  Why will there be new emojis tomorrow? And what does this have to do with international law? Read on…

First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts.  Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).

Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.”  The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎

Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols  should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year.   (By way of perspective the total  “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here.  Can’t wait to use the team handball emoji!

But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:

The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.

“Our goal is to make sure that all of the text on computers for every language in the world is represented,”

However, as Mashable notes:

getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.

What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.

But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.

Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium.   The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)

Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question  of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji.  Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation.  Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated: (more…)

Venezuela’s Crisis Tests the OAS’ Legal Commitment to Defending Democracy

by Julian Ku

Foreign Policy has a great report from Michael Shifter on the ongoing diplomatic battle within the members of the Organization of American States over how to respond to Venezuela’s ongoing political and economic crisis.  According to Shifter, the OAS Secretary General Luis Almagro is pushing hard to get the OAS membership to invoke Article 20 of the OAS Democratic Charter at the upcoming June 23 special session.  Under Article 20, the Secretary General may ask the Permanent Council of the OAS to “collectively assess” as situation where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”   The Permanent Council can then undertake “necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.”

The OAS Secretary-General has already issued a long 114 page report explaining why he believes (starting on p. 35) that there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order” of Venezuela.  I haven’t been following the Venezuela situation closely, but this report certainly lays out a strong case.  Even more importantly in my view, it offers a good explanation of why members of the OAS have (via the Democratic Charter) a strong international legal obligation to democratic governance.

The penalties for breaching this obligation aren’t all that onerous.  Under Article 21, the OAS, via a special session, can suspend Venezuela from the OAS. I am not sure how likely this is to happen, given that Article 21 has a 2/3 majority requirement.

Still, I find this whole episode a fascinating example of how an international organization can become the key vehicle for influencing the domestic governance of one of its member states.  Key states are concerned about the crisis in Venezuela, and it looks like the OAS will be the chosen vehicle of (very soft diplomatic) intervention.

Does the International Court of Justice Have Jurisdiction over Iran’s Claim Against the U.S? Actually, Maybe It Does

by Julian Ku

After about two months of public statements threatening to take the U.S. to the International Court of Justice over frozen Iranian assets, Iran finally instituted ICJ proceedings yesterday under the 1955 U.S.-Iran Treaty of Amity, Economic Relations, and Consular Rights.  Iran alleges in its complaint that the U.S. has violated the treaty’s obligations by taking Iranian government assets and redistributing them to families of U.S. marines killed in the 1983 Beirut bombing.  In April, the U.S. Supreme Court upheld the constitutionality of a 2012 congressional statute authorizing the seizure of Iranian government assets for distribution to the plaintiffs.

Iran argues that the U.S. government violated the 1955 Treaty in numerous ways by its failure to recognize the separate legal identity of the Iranian Central Bank and other state-owned companies and its failure to provide protection for such property as required by international law.  Iran further alleges that the U.S. conducted an expropriation of Iranian assets, while also denying access for those legal entities in US. court, while at the same time failing to respect their sovereign immunity, as well as other treaty violations.

Under paragraph 2 of Article 21 of the Treaty,

 

Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

I have previously tweeted on more than one occasion that the ICJ would have no jurisdiction, but I had forgotten about this provision (luckily someone reminded me on Twittter).  Believe it or not, Article 21 of the U.S-Iran Friendship Treaty has already been the basis for two prior ICJ proceedings: the U.S. case against Iran’s seizure of the U.S. embassy and its personnel (1979) and the Iranian case against U.S. actions against its Iranian oil platforms in 1992.  So it is clear that Article 21(2) is a legitimate basis for jurisdiction, and the ICJ held in both prior cases that this provision conferred jurisdiction upon it.

On the other hand, Article 21 limits a party’s claim to a “dispute…as to the interpretation or application of the present Treaty.”  This means Iran will have to limit its claim to violations of the treaty, rather than violations of general international law.  This is harder than it looks.  In the 2003 Oil Platforms judgment, the ICJ found that it had jurisdiction, and that U.S. attacks on the oil platforms were not justified on self defense. The ICJ nonetheless found that Iran’s claim that U.S. attacks on its oil platforms did not breach the “freedom of commerce” between the two nations, since no such commerce in oil was occurring at that time.  So the U.S. lost on jurisdiction, but won on the merits.

So I am going to reverse my earlier views and tentatively guess that the ICJ will find that it has jurisdiction over this case.  In particular, I think Iran will have a good argument that Article IV(2), which requires the U.S. give Iranian nationals’ property “the most constant protection and security within the territories of the other High Contracting Party, in no case less than that required by international law….” (emphasis added). I am not sure Iran is right that the U.S. violated Article IV(2), but I think Iran has a plausible argument that it could have been violated. That should be enough for jurisdiction.

I nonetheless expect the U.S. government to make a big fight over jurisdiction and admissibility. Even if it loses, the U.S. can slow down these proceedings tremendously by battling over jurisdiction and narrowing which claims Iran can bring forward.  This strategy worked very well in the Oil Platforms case.  Iran filed the proceedings in 1992. The ICJ did not issue an determination on jurisdiction until 1996.  The ICJ then took another seven years to finally issue a judgment on the merits in 2003 (which the U.S. won anyway).  With any luck, the U.S. could avoid a merits judgment here until 2027.

I think this case might move along more briskly, but it will still take a while.  And I think the slow wheels of international justice might work out for both sides here. Iran’s leaders can say they are doing something, but it will not result in any immediate judgment that will put the U.S. on the spot.  The U.S. can drag this out, and it might even prevail on the merits (I have no strong opinion on that complex issue yet).

I do not expect the U.S., however, to boycott of the entire proceedings, as China has been doing in the Philippines South China Sea arbitration.  For one thing, there is really no need, as I explained above, since we could be in for a 10 year wait for a judgment. For another, the U.S. needs to show that it plays nice with international law and courts to bolster its own calls on China to abide by the South China Sea arbitration.

Alexander Hamilton, the New Republic, and the Law of Nations

by Chris Borgen

There’s this musical on Broadway. It’s called Hamilton.  You might have heard of it. It’s causing legal scholars to say things like “I admired Hamilton since before he could rap,” and “My Shot has a pretty good lyric but have you tried Federalist no. 6?”

Anyway, a short note on A. Ham. and the law of nations seems in order.  For the following, I am particularly indebted to  Mark Janis’ book America and the Law of Nations 1776-1939 (Oxford 2010), David Bederman’s volume The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge 2008) and Hamilton’s Republic (The New Press 1997), a compilation of writings by Alexander Hamilton and later “Hamiltonian” writers edited and introduced by Michael Lind. These authors and others writing about Hamilton do not necessarily come to the same conclusions regarding his views on what we now call international law, but rather provide  varying perspectives on a complex man.

By way of background, the views of the founders were in part shaped by their education in classical history as well as Enlightenment philosophy.  David Bederman, in his study of classical thought and the U.S. Constitution, wrote that “[s]tarting first with classical writers in Greek, the Framing generation particularly prized the works of Plato, Aristotle, Thucydides, Polybius, and Plutarch, in that rising order of esteem.” (Bederman, 15.)   Thucydides’ international realism and Polybius’ conception of a “mixed constitution” combining monarchy, oligarchy, and democracy were especially influential on the founding generation. Hamilton was particularly fond of quoting Plutarch, whose biographies combine issues of public policy and state building with individual moral choice. (Bederman,16-17; 22.) Hamilton and other founders may have used “instrumental classicism,” to support their political arguments, but they also did a “reputable job in trying to make sense of antiquity,” with Hamilton among the “best” classicists. (Bederman, 228.)

Beyond classical history and philosophy, the founders were also influenced by Enlightenment philosophy and, as a group, were well-versed in the 18th century law of nations and often referred to it in their writings. Mark Janis, in the first volume of his history of the United States and international law, argued that “[n]o group of America’s leaders have ever been more mindful of the discipline[of international law] than were the Founding Fathers.” (Janis, 24.)

In relation to studies in natural law at Kings College (later, Columbia University), Alexander Hamilton suggested in 1775 a reading list of “Grotius, Pufendorf, Locke, Montesquieu, and Burlemaqui.” (Janis, 24-25.) This shows, at least, his exposure to foundational texts of international law.  However, suggesting a reading list on natural law and actual application of the law of nations in practice are two different things. So, how concerned was Alexander Hamilton with the application of the law of nations to the “young, scrappy, and hungry” republic?

Here we can see some divergence in interpretation by scholars. Janis notes that in 1795 Hamilton (more…)

I’d Like to Be Under the South China Sea in a Crewed Deep Sea Platform in the Shade

by Chris Borgen

Earlier this week, Julian and I each posted about the international legal issues of the Moon and asteroid mining plans of U.S. companies. Those projects may have sounded like something out of Space 1999 but now we hear of one of China’s near-term priorities that sounds like SeaLab 2020.

Bloomberg reports:

China is speeding up efforts to design and build a manned deep-sea platform to help it hunt for minerals in the South China Sea, one that may also serve a military purpose in the disputed waters.

Such an oceanic “space station” would be located as much as 3,000 meters (9,800 feet) below the surface…

This would be by far the deepest long-term undersea facility (as opposed to a deep sea vessel, such as a submarine). By way of context, the NASA Extreme Environment Mission Operations Facility (NEEMO), the “world’s only undersea research station” is anchored at a depth of 62 feet.

China’s leadership explains that, in part, this base will help with a new frontier of resource development, using rhetoric that is at times similar to the arguments some make concerning private space ventures on the Moon and asteroids:

President Xi Jinping said at a national science conference in May: “The deep sea contains treasures that remain undiscovered and undeveloped, and in order to obtain these treasures we have to control key technologies in getting into the deep sea, discovering the deep sea, and developing the deep sea.”

But, beyond looking for deep sea resources, the concern is that the base is part of China’s gambit for sovereignty over much of the South China Sea.  However, while establishing this undersea platform may become part of China’s political argument for its sovereignty claims, it does nothing to support the legal argument. Under the UN Convention on the Law of the Sea (UNCLOS), this undersea platform would probably be treated as an “artificial island,” like an oil rig.  At the time that UNCLOS was being drafted, large undersea bases were more the province of James Bond movies than treaty negotiations, so the closest analogy in the text is what would likely be applied in this case.  (For a discussion on sea platforms, “seasteading,” and sovereignty claims by non-state actors, see this post.)

Although it is not clear where the location of this undersea lab would be, UNCLOS has similar provisions concerning artificial islands located in an Exclusive Economic Zone (article 60) or on the continental shelf (article 80, which refers back to the article 60 text, with any applicable adjustments).

The text from article 60 states:

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

So, in short, building this base would not change China’s territorial rights.

However, the concern is that, while it may not help the legal argument, another goal of the base may be to bolster the political argument with some military muscle. The Bloomberg article quotes the following:

“To develop the ocean is an important strategy for the Chinese government, but the deep sea space station is not designed against any country or region,” said Xu Liping, a senior researcher for Southeast Asian affairs at the Chinese Academy of Social Sciences, a government-run institute.

“China’s project will be mainly for civil use, but we can’t rule out it will carry some military functions,” Xu said. “Many countries in the world have been researching these kind of deep water projects and China is just one of those nations.”

Whether China actually builds this base–and if so, where–remains to be seen. If it does so, it will also be interesting to assess whether the base turns out to be most useful as a scientific research facility, a political gambit, or a military base.

Abkhazia Defeats Panjab in Overtime for ConIFA World Football Cup

by Chris Borgen

I know Opinio Juris is probably not where you come for sports updates but this is the result of the ConIFA World Football Cup, a tournament among unrecognized regimes, minorities, and stateless peoples.

For more on ConIFA, statehood, and nationalism, see my post from last week.  In short, the ConIFA competition may be an attempt not only to boost morale within unrecognized regimes, ethnic enclaves, and stateless people, but also remind the rest of the world of the claims that these groups have, be they claims of statehood or simply a desire to be recognized to exist as a people. Consider the following from an article posted by Al Jazeera:

…CONIFA’s president Per-Anders Blind explained how this World Cup has nothing to do with politics and borders.

“Our aim is to show that football can be a tool to bring our members to the global stage. We all have the same right to exist,” he said.

Chewing on a little pouch of “snus’, a Swedish chewing tobacco, Blind described how the idea for the CONIFA World Cup was inspired by his own life experience.

“My father is a reindeer herder in the Swedish and Norwegian mountains. I was born and raised as part of a group of forgotten people, the Sami, and endured discrimination because of that.”

Blind’s comments are reminiscent of the Olympic ideal to “use sport to foster peace and reconciliation, underlining the power of the Games to promote tolerance and solidarity among the participants, fans and people all over the world.”  Perhaps the founders of ConIFA were frustrated that membership international sports organizations such as the International Olympic Committee and (particularly relevant to ConIFA) FIFA, was too intertwined with statehood to extend these ideals to unrecognized regimes and stateless peoples. As the ConIFA website states, echoming the Olympic ideal,

CONIFA aims to build bridges between people, nations, minorities and isolated regions all over the world through friendship, culture and the joy of playing football. CONIFA works for the development of affiliated members and is committed to fair play and the eradication of racism.

But it can be difficult to set aside issues of politics, borders, and laws when the membership of ConIFA is practically defined by its tension with existing borders, politics,and/ or laws. While the structures of the International Olympic Committee and FIFA may favor recognized states, the tournament organization of ConIFA itself steps from the sports field into the arena of high politics.   Abkhazia, the Georgian breakaway region, not only won the tournament but was also the host. While the tournament may be a morale-booster for the population of Abkhazia, it was played in territory that Georgia views was taken from it by a Russian military invasion.   The Al Jazeera article notes that:

Georgian officials have complained that the CONIFA tournament is illegal since it it lacks Georgia’s authorisation within what it considers to be its territorial boundary. According to Georgian law, participants entering Abkhazia through Russia would be entering Georgian territory illegally.

The ConIFA World Football Cup symbolizes different things for different people. For some, it is an affirmation that they, too, matter. For others, the tournament is affront to the rule of law. And for some, it might just be a chance to watch the home team play a game of soccer. In any case, though, it matters.

Videos and summaries of the games are available at the ConIFA website. (And, by the way, Northern Cyprus beat ConIFA heavyweights Padania for the third place trophy.)

Should the U.S. Approve a Commercial Moon Mining Venture?

by Chris Borgen

Well, Julian beat me to the punch by a few minutes, but here’s my take…

The Wall Street Journal reports:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

It also would provide the biggest federal boost yet for unmanned commercial space exploration and, potentially, the first in an array of for-profit ventures throughout the solar system.

Moon Express is a company looking towards extracting resources from the moon. They explain on their website:

Most of the elements that are rare on Earth are believed to have originated from space, and are largely on the surface of the Moon. Reaching for the Moon in a new paradigm of commercial economic endeavor is key to unlocking knowledge and resources that will help propel us into our future as a space faring species.

There are a variety of different business models for the growing commercial space industry. Some companies are focused on providing launch services for ferrying cargo and crew to orbit and beyond (SpaceX, United Launch Alliance), others have models based space “tourism” (Virgin Galactic), or providing the modular building blocks of space habitats (Bigelow Aerospace) or extracting resources from asteroids or the moon (Planetary Resources, Moon Express). It is this last business model, resource extraction,  that particularly challenges existing regulatory structures, the Outer Space Treaty and  the Moon Agreement.

The U.S. is not a party of the Moon Agreement. However, it is important to note that the Agreement states, in part:

Article 11

1.       The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 of this article.

2.       The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

3.       Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article…

7.       The main purposes of the international regime to be established shall include:

           (a)    The orderly and safe development of the natural resources of the moon;

           (b)    The rational management of those resources;

           (c)    The expansion of opportunities in the use of those resources;

           (d)    An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

[Emphases added.]

Julian and others discussed similar provision in the Outer Space Treaty in relation to asteroid mining in  these posts and  comments: 1, 2.

Based on this text,  some have argued that one cannot mine the Moon or asteroids for private profit.  Julian has set out in his posts an interpretation of the OST language that would allow private ventures.  Others, such as Richard Bilder, have concluded that the regulatory uncertainties regarding mining the Moon argues in favor of constructing a clear multilateral legal regime.

International law can play an important role in this burgeoning field. Rather than attempting to ban such mining enterprises, international law can provide a framework so that such ventures can have greater certainty and better assess risks, as well as have certain limits on their activities. A multilateral agreement can recognize the property rights of companies extracting resources, define where resources can and cannot be extracted, define a regime of noninterference among mining ventures (there are broader noninterference norms in the existing OST and Moon Agreement), and so on. Such an agreement would appreciate the opportunities of this new frontier of exploration and economic activity but also provide some reasonable bounds to avoid conflict, avoid the wasteful degradation of asteroids or the moon, and ban certain activities that could endanger the public. I am skeptical of any attempts, though, at large-scale wealth redistribution. That did not work in the UN Convention on the Law of the Sea (and needlessly hampered the acceptance of an important treaty)  and I see no reason why there would be a different outcome here.

This is why the U.S.’s taking a step forward to approve a private mission my a moon mining company has significant implications.  The Journal continues:

The expected decision, said the people familiar with the details, is expected to set important legal and diplomatic precedents for how Washington will ensure such nongovernmental projects comply with longstanding international space treaties. The principles are likely to apply to future spacecraft whose potential purposes range from mining asteroids to tracking space debris.

Approval of a formal launch license for the second half of 2017 is still months away…

But this is only the first of many steps that U.S. companies may be taking in private space exploration. Elon Musk has announced that SpaceX plans to send an uncrewed lander to Mars around 2018 and a crewed mission around 2026. If that timetable holds, and if states do not jumpstart their Mars programs then the first person on Mars will have been sent by a private company, not a national space program (The key word, of course, being “if.”) I believe the current NASA scenario is to land a crew sometimes in the mid 2030’s.

Although US companies are currently the main actors in these private space ventures, that will not always be the case.  These are early days, still. The “commercial space race” is still among toddlers. But those baby steps quickly become small steps. And then giant leaps.

To answer the question of the title of this post: should the U.S. approve this commercial moon mining venture? If it meets U.S. regulatory requirements and in the absence of clear international law to the contrary: Yes.

But it is also in the interest of American companies, and the US as a whole, to clarify multilateral regulations concerning the commercial exploitation of the Moon and other celestial bodies.  Now is the time to define some ground rules for everyone in the space race.

 

U.S. Government Prepares to Approve First Private Space Expedition to the Moon

by Julian Ku

This is big.  Huge, even. From the Wall Street Journal:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

The main obstacles to this commercial moon mission are not technical or financial. The main problem appears to be legal.  First, the U.S. government must approve the launch (this appears to be happening soon).  Second, the U.S. and the world need to figure out how to regulate commercial exploitation of the moon, because companies like “Moon Express” are not in this for the science alone.  The Moon Treaty seems to prohibit any commercial exploitation of the Moon’s resources under Article 11 (“[N]atural resources of the moon… shall [not] become the property of any ..person”), but the U.S. never ratified it and neither did any of the other major spacefaring nations.

So we are left to the “Outer Space” treaty, which the U.S. did join, but which has much less emphatic limitations on commercial development of celestial resources (as I argued here and here).  I think it is safe to say commercial exploitation of the moon and asteroids is going to happen sooner than we think (starting next year?).  The law will have to catch up later.