General

U.S. LawProf Erlinder Freed on Bail in Rwanda

I kind of expected this would turn out this way, but it does the Rwandan government no credit that they finally released jailed U.S. law professor Peter Erlinder, albeit on bail and due to concerns about his health.  Needless to say, I doubt Professor Erlinder will be returning to Rwanda anytime soon. Peter Erlinder, the American lawyer jailed inRwanda after being...

Brett Schaefer’s Critical (from the Right) Take on the ICC Review Conference

It is worth also considering the views of those critical of the entire ICC effort to the define aggression and bring it within the ICC Statute.  Brett Schaefer at Heritage offers this final take, which he calls the U.S. effort a qualified success due to its ability to delay implementation and to insert "understandings" into the ICC Statute. [T]he U.S. was...

Universities and Development in Poor Countries

Over at AidWatch (William Easterly's blog), guest blogger Moussa P. Blimpo puts up a post on the role of universities in development in poor countries, in Africa and elsewhere.  There are a lot of tradeoffs, explicit and implied - should universal primary education take precedence over university education, for example.  What is the role of universities in poor countries in...

The Transnationalist Obama Administration, Except on Treaties

John Bellinger has a nice op-ed today pointing out that the 112th Congress is on course to set a record for the fewest treaties ratified during a single session of Congress. Despite the presence of 59 Democrats, the Senate has approved only one treaty (a tax agreement with France) during the 112th Congress. The Obama administration must make more vigorous efforts...

Does the World Need a CyberWarfare Arms Limitation Treaty?

Now that the U.S. military has a CyberCommand, is it time for the U.S. to begin talks on a CyberWarfare Arms Limitation Treaty with Russia and other nations? (CALT?)  The new Cyber Command chief says...

Marko Milanovic on Self-Defense

OJ's good friend Marko Milanovic has offered a super-substantive response to my brief comments re self-defense in my not-yet-response to Professor Alston's report on targeted killing and drones.  I will have things to say about that and also my reactions to the interior of the Special Rapporteur's report - happy to say that I avoided any $100 a day fines...

Please, Can We Stop the Stupid Gaza Piracy Charge?

The Gaza Flotilla raid has launched an unbelievable amount of public commentary related to public international law because so much of the debate is framed around the legality of Israel's raid, its blockade of Gaza, etc.  Some of the discussion has been interesting and useful (see again Kevin's posts on legality of the blockade).  But then there is the continuing...

Why International Law Can’t Resolve the Legality of the Gaza Blockade

I want to take a moment to salute Kevin for his post on the legality of the Gaza blockade, which has drawn a record 94 comments and thousands of page views. Talk about fostering discussion and debate! Kevin has put his finger on the key legal issue: the legality of the blockade.  While the question of whether excessive force was used...

Ken’s Not-Yet-Response re Drone Warfare and Targeted Killing and Professor Alston’s Report

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston's UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I've read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I'm under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty's $100 a day late fine kicks in ... sorry to punt, but I'm not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it's not really a response to the report). I will say, though, that Philip's careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It's one reason I hesitate to take the issue up here - I'm not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don't actually fight, or not, on the other ... you see the problem. So, yes, I endorse the "independent" self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I've posted another round of this discussion and the CIA in the second hearing testimony that I've just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases. I endorse the State Department's view of this, as I understand it from Legal Adviser Koh's ASIL speech, and think it nothing novel - merely the reassertion of US legal views - going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat - the terrorists - and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage.

Samantar Insta-Symposium: The View From the Counsel’s Table

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that "Related Posts" will send you to a collection of all...