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The Case That Won’t Die: U.S. Court Revives South Africa Apartheid Alien Tort Statute Lawsuit

by Julian Ku

So maybe the use of the Alien Tort Statute against corporations for overseas activities isn’t fully dead. Yesterday, the U.S. District Court for the Southern District of New York has revived In re South Africa Apartheid Litigation, a twelve-year-old litigation that just won’t die. A copy of the opinion can be found here.

Most of the opinion deals with whether a corporation may be sued under the Alien Tort Statute, an issue most thought was settled within the Second Circuit (the federal appeals circuit that includes New York). As a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS.  The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability.  That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate presence” as being insufficient to overcome the statutory presumption against extraterritoriality.  This language, and the Supreme Court’s decision not to otherwise mention the corporate liability issue, was enough for Judge Scheindlin to revisit the corporate liability issue.  I don’t really buy this sub silentio interpretation of Kiobel, but to give credit where credit is due, this argument was previewed in our Kiobel insta-symposium by Jordan Wells, a third year law student.  Let’s just say Judge Scheindlin really went out of her way to re-open this question.  

My views on the corporate liability issue haven’t changed since I published my full length attack on it back in 2010.  In my view, the Supreme Court’s decision in Mohamad v. Palestinian Authority, finding that the Torture Victim Protection Act does not allow torture claims against corporate defendants, provides an unappreciated boost to the policy rationale for limiting these kinds of lawsuits to natural persons.  But other circuits, and apparently Judge Scheindlin, refuse to agree with me (I know, I know, it’s hard to believe, but it’s true).

Putting aside the corporate liability issue, it is perhaps more surprising that Judge Scheindlin did not simply dismiss all of the defendants on Kiobel extraterritoriality grounds.  The Second Circuit appeals panel in this case held that all of the defendants (U.S. and foreign) should be dismissed because all of the alleged relevant conduct occurred in South Africa.  The U.S. corporate defendants (Ford and IBM) did not overcome the Kiobel presumption because the complaints only allege vicarious liability as parent corporations to their South African subsidiaries.   Yet Judge Scheindlin only dismissed the foreign defendants and will allow the plaintiffs to re-file their complaints against the US defendants to overcome the new Kiobel extraterritoriality presumption.  This means that she is willing to explore in greater detail the Kiobel requirement that plaintiffs’ claims “touch and concern” the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality.  Will knowledge by the US parent of the subsidiaries’ activities in South Africa be enough? Will receiving profits from the subsidiaries be enough? I assume that is the best the plaintiffs will be able to plead is knowledge by the U.S. parent.

I assume this is going back to the appeals panel in this case, and we should expect some rather testy reactions. Judge Jose Cabranes (the author of the appeals court panel decision) and Judge Scheindlin have recently tangled over a local NY case against aggressive police tactics resulting in the controversial removal of Judge Scheindlin from that case (Judge Cabranes was one of three judges involved in that removal order).  This latest Scheindlin order seems a double-insult at Judge Cabranes.  It “reverses” his earlier Kiobel decision on corporate liability (from a lower court no less!), and then it ignores his subsequent opinion holding that all defendants should be dismissed via a motion for judgment on the pleadings.   A little tension brewing at 40 Foley Square, perhaps?

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

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Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

Disaster Displacement: Gaps in International Norms

by Kristen Boon

There is an interesting interview with Professor Walter Kahlin, former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, on disaster displacement over at the IPI’s Global Observatory.

He discusses why the current international law regime on refugees is incomplete when it comes to displacement.  He explains:

Back in 2010, Haiti was hit by one of the most devastating earthquakes, and hundreds of thousands who were displaced within the country immediately found refuge in makeshift camps. But many showed up already during the very first night—the first few days after the earthquake—at the border of the neighboring Dominican Republic. The question for the president was: should he open the borders or should he keep them closed? And he couldn’t get any guidance from any kind of international law because these people, even though they didn’t have any opportunity at that time for their wounded family members to access medical assistance (this came only later), they were not protected as refugees or in any other kind of quality by international law. A gap.

The IMO concurs, stating:  “climate refugees fall through the cracks of asylum law.”   This is clearly an area ripe for reflection.    Do climate refugees have a right of access to neighboring countries?   What should the definition of “climate refugee” be?    More importantly, given the problem of differentiating between climate disasters and natural disasters, it makes it very difficult to determine the different obligations of the international community.    There appears to be little appetite to revise the 1951 convention on the status of refugees to include climate refugees, which would afford them protections akin to political refugees.  Interestingly, the UNHCR has spoken out against this approach, claiming that while environmental degradation can contribute to forced, cross-border migration, this should not translate into more grounds for granting refugee status.

There are some interesting initiatives afoot to fill the gap.   The Nansen initiative, a self-described  “bottom-up” initiative is starting to canvas the norms that might apply.   Information is available here.   The ILC is studying the related question of protection of persons in the event of natural disasters here.   Academics have entered the debate.  Professor Katrina Wyman at NYU has canvassed the current models and proposed a “rights model” in an article here, which would boost the levels of migrants from developing to developed countries to begin with.  She writes:

How might immigration policy be changed to increase resilience in developing countries vulnerable to the effects of climate change? One option would be to make it easier for citizens of developing countries that are vulnerable to climate change to move to destination countries temporarily or permanently, for example, by boosting allowable immigration levels from these countries.

Do our readers have any other suggestions on important sources or approaches to this important new international issue?

Now in Paperback: The Oxford Guide to Treaties

by Duncan Hollis

Just a quick note to flag for interested readers that Oxford has released a paperback version of my book, The Oxford Guide to Treaties.  Happily, it is significantly cheaper than the hardback version — it’s listed for under $60 on Amazon right now.  I hope that this edition will interest non-institutional buyers for whom the earlier price tag was a bit steep. See here and here for additional links.

Events and announcements: April 6, 2014

by An Hertogen

Event

  • The United Nations Law Committee of the International Law Association, American Branch, along with The George Washington University Law School, invite you to a brownbag lunch panel on Treaty Survival on Wednesday, April 9, 2014, 1:00 – 2:15 PM in the Moot Court Room, The George Washington University Law School, 2000 H St. NW, Washington DC, 20052. This panel will address the effectiveness of treaties over time, with particular emphasis on the adaptability of treaties to present-day challenges. Can existing treaties, including those of fundamental doctrinal significance, such as the Geneva Conventions or the Treaty on the Non-Proliferation of Nuclear Weapons, remain effective in an era of rapid change? Can contemplated or future agreements that seek to address evolving areas about which incomplete information exists, such as nanotechnology, geoengineering, synthetic biology, cyberspace and weapons systems, remain relevant and responsive over time? What tools enable international lawyers to assist the international community in addressing these questions? Panellists are our own Duncan Hollis, as well as Sean Murphy, Georg Nolte and Arnold Pronto.

Calls for Papers

  • TDM is calling for a special issue on dispute resolution from a corporate perspective that seeks to widen and deepen the debate on issues that are central to the efficient management of disputes from a corporate perspective. They seek contributions related to dispute management, commercial dispute resolution, managing the cost of dispute resolution, and the future of commercial dispute resolution, but welcome other relevant contributions as well. The editors of the special are: Kai-Uwe Karl (General Electric), Abhijit Mukhopadhyay (Hinduja Group), Michael Wheeler (Harvard Business School) and Heba Hazzaa (Cairo University). Publication is expected in October 2014. Proposals for papers should be submitted to the editors by July 31, 2014. Contact details are available on the TDM website.

Announcements

  • The ICRC has launched its first Research & Debate Cycle on New Technologies and the Modern Battlespace. In recent years, a wide array of new technologies has entered the modern battlefield, giving rise to new methods and means of warfare, such as cyber attacks, armed drones and robots.  While there can be no doubt that IHL applies to them, applying pre-existing legal rules to new technologies may raise the question of whether the rules are sufficiently clear in light of the new technologies’ specific characteristics and foreseeable humanitarian impact. Each of these new technologies raises a host of issues, which the first Research & Debate Cycle proposes to discuss. From March to June 2014, several public events will be organized around the globe, with a view to answering several objectives: connecting academics and researchers on international humanitarian law, scientists, military representatives, human rights lawyers, policy-makers and practitioners;  facilitating discussion, exchange of knowledge and new ideas in relation to the theme of the cycle; ensuring a global outreach, through the involvement of relevant ICRC delegations and contacts in the field; proposing multi-disciplinary solutions to the questions identified. On March 25, the inaugural panel presented the various ethical, legal, scientific, and military issues that new technologies raise for humanitarian law and action, and which the subsequent events will strive to answer. The recording of the panel, as well as several interviews with the speakers, is now available here.
  • The EIUC Venice School of Human Rights will run from June 27 to July 5, 2014 and is accepting applications until May 15, 2014. The EIUC Venice School of Human Rights will update participants on the state of the art debate on human rights issues and stimulate their reflection on the current challenges faced by human rights actors worldwide. After an introduction on current challenges, participants will have the opportunity to learn more about one of these 3 selected topics “Business and Human Rights”, “The Internationalisation of Migration Law and the Role of the EU” and “Freedom of Expression and Assembly Online”. The EIUC Venice School combines theory and practice and its faculty involves internationally recognised academics and practitioners. Prof. Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Prof. William Schabas from the University of Middlesex will open the Venice School 2014. Check herefor the full programme details.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

So How is China Reacting to the Philippines Arbitration Submission? Not Very Well

by Julian Ku

China has not been quiet in reacting to the Philippines filing Sunday of its memorial in the UNCLOS South China Sea arbitration.  In addition to the foreign ministry’s remarks, the People’s Daily has released a full-scale defense of China’s legal and policy position (recently translated here). It is the longest official (well, close-to-official) statement of China’s legal position on the arbitration as I’ve seen anywhere. The heart of China’s argument is that this whole Philippines dispute is about sovereignty over the Nansha Islands, parts of which the Philippines is illegally occupying.  Because this is about sovereignty, and because China excluded maritime and territorial disputes from UNCLOS arbitral jurisdiction in its 2006 declaration, it is the Philippines (and not China) that is violating international law by filing the arbitration claim. Here are a couple of legal arguments or claims in the commentary that jumped out at me. (Read more after the jump)

Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law… (Continue Reading)

Welcome to the Blogosphere “Internationally Wrongful Memes” (!?)

by Chris Borgen

A tumblr of international law humor. No, not “International law is a joke.” Jokes about international law. Seriously.

Did the U.S. Infiltration of Chinese Company Huawei Violate International Law?

by Julian Ku

Just in time for Michelle Obama’s speech in Beijing extolling the benefits of free speech and a President Obama/President Xi summit, the NY Times published an article detailing how the U.S National Security Agency infiltrated the systems of Chinese telecom infrastructure giant Huawei.  According to documents the Times obtained from the Edward Snowden leak, the NSA “obtained information about the workings of the giant routers and complex digital switches that Huawei boasts connect a third of the world’s population, and monitored communications of the company’s top executives.”

From a legal perspective, there is no doubt that this is a violation of Chinese laws and an example of how the U.S. government is doing what it is alleging the Chinese government is doing to U.S. companies. There also seems little doubt that this action is clearly legal under U.S. laws, as the U.S. government has broad and largely unchecked authority to conduct surveillance of foreign nationals in foreign countries.  But is the action illegal under any international laws?

I am doubtful that such snooping could violate any international right to privacy, even if such a right existed.  The ICCPR might provide such a right, but it may or may not apply extraterritorially, and even if it did, it probably doesn’t restrict this kind of activity.

This essay in the Global Times, a hawkish Chinese-state-affiliated newspaper, suggests that such activity could also constitute an attack for the purposes of the law of war.  The author, a U.S.-based writer, argues that “launching attacks under another nation’s flag has long been seen as illegal under both codified law and international custom. In such a case, Chinese nationals would face financial and possibly physical risk, especially if US involvement remained undetected.”

I think this would be a stretch under the laws of war. Is snooping around in Huawei’s servers an “act of violence” within the meaning of the Geneva Convention? I don’t think walking into Huawei’s offices and ruffling through their papers is an act of violence. Taking down their servers, or planting viruses to disable those servers or related activities might be an act of violence, but even that seems a bit of  stretch under current international laws.

So the U.S. may have spied, but it cannot be said to have “attacked” China, in its reported Huawei infiltration.  As a matter of international law, the reported actions appear to be legal, even if they were unwise or hypocritical.

Russian Roulette: Firing Blanks in the Sanctions Against Russia?

by Kristen Boon

As widely reported in the press last week, President Obama announced sanctions against Russian and Ukrainian officials.   On Thursday, March 20, the “blacklist” was expanded to 2 banks and 20 officials, as detailed in this press release from the US Treasury.     Separately, the EU imposed sanctions on 21 individuals, including Russian military commanders.

The U.S. goals, President Obama said, are “to isolate Russia for its actions, and to reassure our allies and partners” of American support.    Under the U.S. Treasury’s ruling, assets belonging to designated individuals within U.S. jurisdiction will be frozen, and business between U.S. entities and the Russian parties in question will be halted.     In retaliation, Russia imposed sanctions against nine officials, including Republican Senator John McCain and Speaker of the House John Boehner.

According to President Obama, the goal of US sanctions is:  “[To] send a strong message to the Russian government that there are consequences for their actions that violate the sovereignty and territorial integrity of Ukraine, including their actions supporting the illegal referendum for Crimean separation .”

I have been studying multilateral sanctions for much of the past year, and the theory behind targeted sanctions in that context is that in order to change behavior, there must be an incentive to comply.  As the sanctions expert Mikael Eriksson writes, “The typical goal of such measures is to influence decision-makers by engaging or isolating them through targeted financial restrictions, and travel bans and other measures . . . targeting involves different tactics, but in principal, pressure is exercised by a combination of punitive measures, incentives and conditionality to entice or coerce designated targets to change their behavior.”

Moreover, a 2007 report of the Security Council’s Working Group on Sanctions states: “Experience has shown that sanctions work best as a means of persuasion, not punishment: sanctions should include carrots along with sticks—not only threats, but inducements to elicit compliance. The target must understand what actions it is expected to take. And partial or full compliance should be met by reciprocal steps from the Council, such as easing or lifting sanctions as appropriate.”  (UN Security Council, Letter Dated 12 December 2007 from the Permanent Representative of Greece to the United Nations Addressed to the President of the Security Council (December 13, 2007) UN Doc. S/2007/734, p. 3)

The only available sanctions against Russia are so called “unilateral” sanctions, by states like the US and organizations like the EU.  Although the United Nations has a well-developed practice of targeting, and in fact has exclusively applied targeted sanctions since 1994, Russia’s unsurprising veto of a draft resolution on the Ukraine on Saturday March 15 foreclosed the opportunity to apply multilateral sanctions against the Ukraine or Russia.   There is consequently no way to apply global sanctions against Russia.  Nonetheless, there may be some useful lessons.

So far, the US sanctions are clearly designed to act as a “stick:” to indicate further consequences will follow any new incursions into the Ukraine, and to signal displeasure with supporting the referendum for Crimean separation.  But do the US or the EU believe at this point that Russia will pull out of Crimea? It seems unlikely and if that is true, these are punitive measures to the extent they are focussed on the referendum and attempted annexation.

The US has an even bigger stick in the wings:  more sanctions against sectors of the Russian economy.    President Obama signed an executive order described here that would allow the administration to apply future sanctions against industries including financial services, metals and mining, energy, defense and related material, and engineering.    These could have a huge impact on the Russian economy, as the New York Times explains, and would likely affect the economy of other countries in Europe as well.

I have seen nothing so far to indicate whether an incentives based strategy is at play here.  I suspect this is partly a question of timing -  it is too soon to entice compliance.  After all, their effects are only starting to be felt.  But for unilateral sanctions by the US and EU sanctions to be effective, it may be necessary to consider carrots.   One of the most tried and tested incentives is to offer the lifting of sanctions.  When a domestic polity backs a particular approach, this is easiest.  Sometimes other techniques are employed as well, whether to include people at the bargaining table who would otherwise be barred, or to offer economic incentives.  Neither of these techniques seems likely in the present situation because the individuals targeted are not outsiders, but part of Putin’s cohort.

As a result, these sanctions may be around for some time.  Presently, it seems unlikely that the Russian ‘targets’ will comply of their own accord.  Moreover, the surge in Putin’s popularity after the attempt to annex Crimea, suggests that there is little domestic opposition to recent developments.

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Reading Tea Leaves in Confirmation Hearings for U.S. Cyber Commander

by Duncan Hollis

Last week, the U.S. Senate held confirmation hearings for Vice-Admiral Michael S. Rogers to replace General Keith Alexander as head of U.S. Cyber Command.  It’s interesting to see how both men received almost identical written questions in their respective 2014 and 2010 hearings.  More interesting perhaps are the similarities and variations in their responses with respect to how international law operates in cyberspace.

For example, in both 2010 and 2014, the Senate asked the nominee the same question: “Does the Defense Department have a definition for what constitutes use of force in cyberspace, and will that definition be the same for [U.S.] activities in cyberspace and those of other nations?

Here was Alexander’s written response:

Article 2(4) of the U.N. Charter provides that states shall refrain from the threat or use of force against the territorial integrity or political independence of any State. DOD operations are conducted consistent with international law principles in regard to what is a threat or use of force in terms of hostile intent and hostile act, as reflected in the Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF). There is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force. Thus, whether in the cyber or any other domain, there is always potential disagreement among nations concerning what may amount to a threat or use of force.

Remainder of answer provided in the classified supplement.

And this is what Vice Admiral Rogers provided to the Committee last week:

DoD has a set of criteria that it uses to assess cyberspace events. As individual events may vary greatly from each other, each event will be assessed on a case-by-case basis. While the criteria we use to assess events are classified for operational security purposes, generally speaking, DoD analyzes whether the proximate consequences of a cyberspace event are similar to those produced by kinetic weapons.

As a matter of law, DoD believes that what constitutes a use of force in cyberspace is the same for all nations, and that our activities in cyberspace would be governed by Article 2(4) of the U.N. Charter the same way that other nations would be. With that said, there is no international consensus on the precise definition of a use of force, in or out of cyberspace. Thus, it is likely that other nations will assert and apply different definitions and thresholds for what constitutes a use a force in cyberspace, and will continue to do so for the foreseeable future.

Similarly, both hearings had the Senate asking “Could U.S. Cyber Command lawfully employ offensive cyber weapons against computers located abroad that have been determined to be sources of an attack on the United States or U.S. deployed forces if we do not know who is responsible for the attack (i.e., a foreign  government or non-state actors)?

General Alexander’s response:

The establishment of U.S. Cyber Command, in and of itself, does not change the lawful employment of military force for self-defense. In this case, if the “attack” met the criteria approved by the President in our Standing Rules of Engagement, the military would exercise its obligation of self-defense. Operationally, it is difficult to develop an effective response when we do not know who is responsible for an “attack”; however, the circumstances may be such that at least some level of mitigating action can be taken even when we are not certain who is responsible. Regardless whether we know who is responsible, international law requires that our use of force in self-defense be proportional and discriminate. Neither proportionality nor discrimination requires that we know who is responsible before we take defensive action.

Vice-Admiral Rogers got the same question plus an additional add-on sentence, asking ”Without confident “attribution,” under international law, would the Defense Department have the authority to “fire back” without first asking the host government to deal with the attack?”  His written response?

International law does not require that a nation know who is responsible for conducting an armed attack before using capabilities to defend themselves from that attack. With that said, from both an operational and policy perspective, it is difficult to develop an effective response without a degree of confidence in attribution. Likely, we would take mitigating actions, which we felt were necessary and proportionate, to defend the nation from such an attack. I’d note that in such an event, U.S. Cyber Command would be employing cyber capabilities defensively, in the context of self-defense.

For me, I was struck by (a) the new emphasis on the ‘effects test’ that’s been bantered about for years in terms of identifying what constitutes a use of force subject to Article 2(4); (b) the lessened attention to ‘classified responses’, which peppered Alexander’s original written responses and that are now (thanks to Edward Snowden I assume) largely absent from Rogers’ answers; and (c) the softening of the language regarding the U.S. willingness to respond in self-defense where attribution is a problem.

What do readers think?  Is this all one, harmonious, consistent U.S. policy?  Or, are there shifts in these responses that bear watching?  Anyone interested in comparing the remainder of the two testimonies can do so by seeing what Alexander wrote here versus Rogers’ more recent written responses here.