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Is Law Losing Cyberspace?

by Duncan Hollis

The ALL CAPS headline of the last few hours involves news that social security and other identifying information for some 4 million U.S. federal workers was compromised in a cyber exploitation that, if one believes the unofficial finger pointing, came at the behest of the Chinese government.  Of course, it was just yesterday, that the Council on Foreign Relations’ Adam Segal was reporting how China was crying foul over “OceanLotus” a cyber exploitation that counted various Chinese governmental agencies and research institutes among its victims (and where the fingers were pointed back at the United States). And that’s to say nothing of the Snowden disclosures or the tens of millions of people whose personal data has been compromised via data breaches of an ever-expanding list of private companies (e.g., in February 2015 the U.S. health insurer Anthem admitted that up to 80 million people in its databases had their personal data compromised).  Now, maybe such data breach stories are hyperbolic, offering big numbers of potential losses that do not necessarily mean actual data compromises, let alone consequences for the associated individuals.  Nonetheless, the current zeitgeist seems to be the normalization of cyber insecurity.

As someone who believes international law has an (imperfect) role to play in preserving international peace and stability, I find the current scenario increasingly worrisome.  The level and breadth of cyber exploitations suggests a world in which actors are engaged in a race to the bottom of every data well they think might be useful for their own purposes, on the theory that their adversaries (and their allies) are all doing the same.  In such a world, law seems to be playing a diminishing role.

To be clear, domestic law certainly may constrain (or facilitate) a State’s cyber operations, as all the anxiety associated with the expiration of the PATRIOT Act and this week’s passage of the USA FREEDOM Act suggest. For those of us who care about international law, however, it seems increasingly marginalized in the current environment.  We’ve spent much of the last several years, focused on how international law applies to cyber-operations with huge efforts devoted to questions of line-drawing in what constitutes a prohibited use of force in cyberspace under the jus ad bellum or where the lines are for an attack under the jus in bello.  The Tallinn Manual is the paradigmatic example of this (often quite good) work.  More recently, States and scholars have moved on to cyber operations below these lines, with attention shifting in Tallinn and elsewhere to which cyber operations may generate counter-measures and defining when cyber operations violate the duty of non-intervention.

Such efforts have (so far) had relatively little to say on the question of a cyber exploitation that is best characterized as espionage.  With the exception of U.S. efforts to decry “economic” cyber espionage (as opposed to national security cyber espionage), most international lawyers have shrugged their shoulders on the legality of governments (or their proxies) stealing data from other governments or their nationals.  The conventional wisdom suggests intelligence agencies will be intelligence agencies and we should let this play out via diplomacy or power politics.  To the extent international law has long failed to prohibit espionage, the thinking goes, by analogy it should also leave cyber espionage alone.  And if that’s true, international law has little to say about China taking whatever data it can on employees of the U.S. federal government.

Of course, conventional wisdom is often conventional for good reasons.  From a national security perspective, there are important interests that militate against regulating or constraining data collection from abroad.  Yet, I worry that we’re reaching a tipping point where in conceding international law can do little to nothing for the problem of cyber exploitations, we are effectively conceding the rule of law in cyberspace.  It’s understandable that, from a rational perspective, States will want to do as much of this activity as their technical capacity allows.  But, such self-centered policies have generated a dramatic collective action problem.  The current cyber system is certainly sub-optimal, whether you consider it in economic, humanitarian, or national security terms. The economic costs of the status quo are by all accounts growing, whether in terms of losses of data and IP, or the costs of cleaning up after exploits occur.  Similarly, the ability of individuals to preserve their privacy is rapidly diminishing, and the right to privacy along with it.  And, of course, national governments are fighting, and losing, the battle to keep their own data (and secrets) secure.

All of this leads me to ask whether it’s time to revisit the question of how international law deals with data breaches?  I recognize some may say “no” or that after long and careful thought the answer may remain the same.  But, the rising importance and success rates of data breaches across the globe suggests it’s high time for international law to at least engage these questions more closely.

What do others think?  Is international law losing in cyberspace or is there still a chance that it can play a regulatory role over modern cyberthreats, even if only an imperfect one?

 

China Defends Itself on South China Sea: “We are against the arbitrary distortion of the international law.”

by Julian Ku

There is no shortage of commentary on the growing US-China tensions over China’s land reclamation activities in the South China Sea. I’ve already added my two cents on the legal aspects here, but it’s worth trying to understand China’s defense of its actions.  Here is China’s Foreign Ministry spokeswoman at a press conference responding to comments from US and Japanese leaders that China should abide by international law.

The international law has been constantly brought up by some countries when it comes to the South China Sea issue. If they did read closely the international law, then please tell us which article in the international law forbids China to carry out justified construction on its own islands and reefs? Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom? We are against the arbitrary distortion of the international law. If it is not a practice of double standard, then it must be driven by some hidden motives.

Let me take the two (rhetorical) questions in order:

1) “[W]hich article in the international law forbids China to carry out justified construction on its own islands and reefs?

China has a point here. There is no explicit prohibition under international law on construction on a country’s own “islands and reefs.”  That is why the US calls on China to stop land reclamation don’t have a strong legal basis, especially since it appears most of the other South China Sea claimants have also engaged in some (smaller scale) land reclamation.

On the other hand, it is far from clear China is building out on “islands”. It is likely that it has possession only of “rocks” or maybe even just “reefs.” And it is far from clear that China has title to whatever land features it is using.  But land reclamation alone isn’t a violation of any international law that I am aware of.

2) “Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom?”

Here, China is on much shakier ground. As I explained at too much length here, UNCLOS is probably best interpreted to allow surveillance and monitoring by foreign military vessels and aircraft up to 12 nautical miles of a country’s territories, and within those 12 nm if the territory is only a rock or a reef.  China doesn’t agree with this interpretation, and this is the crux of the dispute with the U.S.

Overall, I think China has a strong legal point on land reclamation, but a weak legal point on surveillance and freedom of navigation.  The obvious “compromise”  (or maybe the word is “standoff”) here is for the US to tacitly accede to China’s land reclamation, and for China to tacitly accede to US military surveillance up to and perhaps within 12 nautical miles.  Since the US can’t actually stop China from continuing its land reclamation, and China can’t stop US surveillance, this “compromise” seems like a safe bet. I will note, however, that China’s actions have unleashed the hawkish wing of the China-watching establishment in the U.S. and, over the long term, this may be the most important outcome of this standoff.  The US is taking off the gloves against China and a containment strategy with our new best friends in Vietnam and India  is becoming increasingly likely.

New Edited Collection on the ICC

by Kevin Jon Heller

Oxford University Press has just published a massive new book on the ICC, “The Law and Practice of the International Criminal Court,” edited by Leiden’s Carsten Stahn. Here is the publisher’s description:

The International Criminal Court is a controversial and important body within international law; one that is significantly growing in importance, particularly as other international criminal tribunals close down. After a decade of Court practice, this book takes stock of the activities of the International Criminal Court, identifying the key issues in need of re-thinking or potential reform. It provides a systematic and in-depth thematic account of the law and practice of the Court, including its changes context, the challenges it faces, and its overall contribution to international criminal law. The book is written by over forty leading practitioners and scholars from both inside and outside the Court. They provide an unparallelled insight into the Court as an institution, its jurisprudence, the impact of its activities, and its future development.

The work addresses the ways in which the practice of the International Criminal Court has emerged, and identifies ways in which this practice could be refined or improved in future cases. The book is organised along six key themes: (i) the context of International Criminal Court investigations and prosecutions; (ii) the relationship of the Court to domestic jurisdictions; (iii) prosecutorial policy and practice; (iv) the applicable law; (v) fairness and expeditiousness of proceedings; and (vi) its impact and lessons learned. It shows the ways in which the Court has offered fresh perspectives on the theorization and conception of crimes, charges and individual criminal responsibility. It examines the procedural framework of the Court, including the functioning of different stages of proceedings. The Court’s decisions have significant repercussions: on domestic law, criminal theory, and the law of other international courts and tribunals. In this context, the book assesses the extent to which specific approaches and assumptions, both positive and negative, regarding the potential impact of the Court are in need of re-thinking. This book will be essential reading for practitioners, scholars, and students of international criminal law.

The book includes my essay on Regulation 55 and an essay on co-perpetration by Jens. At £195, most people won’t be able to buy a copy. But four chapters are available for free download and most libraries are sure to acquire it.

Congratulations to Carsten on a tremendous accomplishment!

Inter-temporal International Law? Or How Would Modern International Law Have Treated “Unconditional Surrender”?

by Julian Ku

Seth Tillman of Maynooth University has a clever “parody” letter (scroll to the bottom) in the most recent Claremont Review of Books.  I can’t really do it justice here, but it is an amusing take on how modern international law might have critiqued the relentless Allied demands for unconditional surrender by Germany and Japan in 1945.  Also, I particulalry appreciate his efforts to reproduce mid-20th century typography.

al Warafi’s Active Hostilities

by Deborah Pearlstein

Cross-posted at Just Security

As Marty Lederman’s earlier post explains, a D.C. district court is now considering the habeas petition of Guantanamo detainee Mukhtar Yahia Naji al Warafi, found in an earlier habeas case to be a member of the Taliban’s armed forces, who argues that because “hostilities” between the United States and the Taliban have ceased, the domestic statute (the AUMF) on which the United States has relied no longer authorizes his detention. Marty and I are, I believe, in substantial agreement about most aspects of the case. (And thanks to Marty for the link to my article, where I’ve written about the merits of these issues, and the role of the courts in resolving them, at length.)

But because both the briefs and (therefore) Marty’s post devote so much time to parsing the President’s statements about the existence of an armed conflict between the U.S. and the Taliban – statements I think only marginally relevant to the merits of al Warafi’s case – I want to clarify what this case mostly is, or should be, about.

Warafi’s petition is, appropriately, based on Article 118 of the Third Geneva Convention (GCIII), requiring that prisoners “shall be released and repatriated without delay after the cessation of active hostilities.” By its terms, GCIII only applies to international armed conflicts – that is, conflicts between two or more states. As I think all would agree, the conflict in Afghanistan has for some years been a non-international armed conflict – that is, a conflict between states (Afghanistan and the United States) on one side and several non-state parties (including a Taliban insurgency) on the other. But because Justice O’Connor expressly cited Article 118 in explaining the Court’s understanding of the scope of the AUMF in Hamdi, there has been little dispute since Hamdi that Article 118’s limitation on the duration of detention informs the “necessary and appropriate” scope of AUMF detentions.

Article 118 does not require a court (or anyone else) to determine whether the parties are in fact still in a state of “armed conflict” within the meaning of international law. The existence or not of an “armed conflict” can matter a great deal in some circumstances – most commonly, in the determination whether an individual may be tried for war crimes, a question at issue in our own military commission trials as we speak. It may also ultimately matter in al Warafi, for reasons I discuss below. But “armed conflict” (see GCIII Common Article 2) and “active hostilities” (in Article 118) are separate terms in the treaties, and were deliberately designed to refer to separate concepts, as well. As the Commentary to GCIII makes clear, the drafters of Article 118 were interested in hastening the release of prisoners, requiring their release at an earlier point than previously assumed – i.e., in the current version of the Conventions, as soon as the fighting stops. (In an interstate armed conflict, which is what Article 118 addresses directly, this point can occur before the end of the conflict.) The notion was in part to prevent parties from continuing to hold prisoners on some pretext, as some of the Allies did after World War II, keeping prisoners for purposes of forced labor. (For more on how the United States has ended its detention operations in wars of the past century, see here. Notably, the United States has often released prisoners back into conditions of hostilities far more active than what the U.S. brief now describes in Afghanistan.) The Article 118 rule was equally driven by an interest in letting prisoners return home without having to wait for a formal peace agreement to be concluded (or some other manifestation of often unattainable clarity in the relations between the parties).

Because Article 118 is thus aimed directly at the facts on the ground, as it were, claims based solely on what the President (or the Taliban, for that matter) says about the mission of the United States or the existence of an “armed conflict” can hardly be dispositive of whether “active hostilities” actually continue–and that is the relevant question, as the Government suggests in the back end of its brief (see the end of Marty’s post), but that Al Warafi strangely ignores. So what is actually happening on the ground in Afghanistan? Between the DOD General Counsel’s speech at ASIL some weeks back, and the U.S. brief filed in al Warafi, one might expect that we would have important insights into the answer to that question. Alas, we don’t yet know very much. This is no doubt due in part to some significant redactions in the government’s brief – passages the relevance of which is impossible to evaluate. And some unredacted parts of the government’s brief describe circumstances other than fighting: the presence of U.S. troops, for example, or the presence of a threat from Al Qaeda rather than the Taliban. These facts are of limited significance to the question of whether “active hostilities” between the U.S. and the Taliban continue. The U.S. military maintains a presence in numerous countries; that is hardly enough to constitute “active hostilities.” And the existence of a generalized, chronic “threat” from Al Qaeda or the Taliban – a claim the government brief makes repeatedly – likewise should not suffice. U.S. troops, civilian employees and nationals face threats all over the world. There is a difference between the threat of hostilities and actual, “active” hostilities.

What matters here is the handful of unredacted incidents the government notes on pages 14-15 of its brief – incidents involving actual attacks by the Taliban. Interestingly, however, of the four incidents cited, only one appears to involve a Taliban attack on U.S. military forces as such. One incident involves a Taliban infiltration of Afghan forces, in which three American civilian contractors were killed. Two others involve attacks on NATO forces, in which two U.S. troops were killed. The last involves “an attack by a suicide car bomber” near a U.S. military base, which is not reported to have resulted in any American casualties.

Without for a moment discounting the immeasurable human cost of such incidents, it is here that understanding the meaning of “active hostilities” might be informed with reference to the nature of “armed conflict.” Article 118 uses the term “active hostilities” rather than “armed conflict” not to suggest that prisoners could be held even after the conclusion of full-fledged armed conflict, as long as any low level of hostilities exists. Rather, that article makes the continuation of “active hostilities” the condition for continued detention for the opposite reason – that is, to facilitate the release of prisoners as soon as conditions make it possible, whether or not the parties have succeeded in agreeing to a formal end to armed conflict. It is difficult to imagine that the drafters of this provision imagined a condition of zero violence would be required before prisoners would be entitled to release. That is, it is difficult to imagine the drafters wished to replace one too-practically-difficult condition for the termination of detention with another too-practically-difficult condition, given their express concern for the reality, as the Commentary puts it, “that captivity is a painful situation which must be ended as soon as possible.” The “active hostilities” term is better read as embodying a pragmatic standard, with a finger on the scale of release. Whether the redacted passages of the government’s brief reveal that active hostilities are yet over or not, the legal standard should not require conditions of absolute peace to conclude that they are.

The ILC takes up Jus Cogens

by Kristen Boon

On May 27, 2015 Mr. Dire Tladi of South Africa was appointed Special Rapporteur for a new topic on the International Law Commission’s agenda:  jus cogens.  The progressive development and codification of jus cogens principles marks a significant step forward.  For many years it was considered, as Ian Brownlie once quipped, “like the car that never left the garage.”  The ILC’s syllabus, available here, suggests a bright new future lies ahead.

The scope of the Commission’s inquiry is likely to focus on the following elements:  the nature of jus cogens; requirements for the identification of a norm as jus cogens; an illustrative list of norms which have achieved the status of jus cogens; consequences or effects of jus cogens.

If you are interested in updates on the ILC’s work such as this one, I encourage you to sign up for Arnold Pronto’s new twitter feed. Arnold is a Senior Legal Officer in the Codification Division in the Office of Legal Affairs, and is the new UN Representative for an ILA group that will be preparing a report on international law activities at the UN twice a year.   Arnold will be tweeting out international law related events as they happen here at the UN. If you’re interested, he is at @arnoldpronto 

The Nature and Scope of the War in Afghanistan

by Jens David Ohlin

Two recent court filings bring to light important questions about the scope and nature of the armed conflict in Afghanistan. Who would have thought that so many years after 9/11 we would still be asking important questions about the nature of the hostilities there.

First, on May 20, 1995, counsel for detainee Al Warafi filed a reply brief in his habeas litigation in the D.C. district court. Warafi argues that his law of war detention is illegal under international law because the war in Afghanistan is over. Under applicable international law, detainees held pursuant to the law of armed conflict should be repatriated upon the conclusion of the armed conflict that served as the factual and legal predicate for their detention. As evidence that the war in Afghanistan is over, Warafi points — as he has in previous filings — to declarations made by President Obama that the war in Afghanistan is over. This is a clever argument because it appeals to a pre-existing tenet of the separation-of-powers jurisprudence that federal courts, and especially the D.C. Circuit, have respected before: that the judiciary should defer to executive branch judgments about matters pertaining to national security and armed conflict. If the President believes that the war in Afghanistan is over, why should a federal judge decide differently? See Ludecke v. Watkins (1948).

In the government’s opposition brief filed in April, the Justice Department makes a distinction between the existence of an armed conflict and the existence of ongoing hostilities. If I understand the government’s position correctly, the Justice Department is arguing that irrespective of what President Obama has said publicly about the end of the “war” in Afghanistan, executive branch officials have consistently noted that there are ongoing hostilities in Afghanistan and that U.S. DoD personnel continue to be engaged in military operations there. (Indeed, the Defense Department General Counsel gave a major policy address at the American Society of International Law Annual Meeting in April 2015, which many OJ readers attended, where he specifically noted that the U.S. military continues to operate in Afghanistan in offensive military operations).

This argument can be interpreted in multiple ways. First, it could mean that the foundation for law-of-war detention is not the existence of a state of armed conflict between the parties but rather the existence of ongoing hostilities; these two factors usually coincide but at their margins they might diverge, especially before and after an armed conflict. Second, it could mean that the President was talking about war in a political or even constitutional sense, but was not making a statement regarding the formal existence of an armed conflict in the sense that it is meaningful for IHL lawyers.

In his reply brief, Al Warafi argues that “war”, “combat mission”, and “hostilities” are co-extensive terms, so that the President’s announcement of the end of the combat mission is logically the same as announcing the end of the armed conflict in Afghanistan. Also, Al Warafi argues that the ASIL policy address by DoD is irrelevant to the analysis because it came after Al Warafi filed his petition. Indeed, the reply brief refers to the ASIL speech as “self-serving” — implying that the DoD was motivated to make those statements by a legal need to justify Al Warafi’s continued detention (and any others who are similarly situated).

Now for the second litigation. Hamidullin was a Taliban commander in Afghanistan who engaged in military action against US forces. He was captured, brought to the US, and then indicted in federal court in Virginia for providing material support to terrorism and other charges. On May 4, 2015, he filed a motion to have the indictment dismissed, arguing among other things that he was protected by combatant immunity while engaged in hostilities in Afghanistan. His motion will require the court to pass judgment on the nature of the armed conflict in Afghanistan at the time he engaged in his acts of belligerency (2009).

Clearly, the armed conflict between the US and Afghanistan began as an international armed conflict (IAC). Everyone agrees on that. However, I think the US government position is that once the Taliban were defeated and removed from power, the conflict transformed into a non-international armed conflict (NIAC) between the new government of Afghanistan and the Taliban acting as a non-state actor. The U.S. is a party to this conflict as a co-belligerent fighting alongside the “new” government of Afghanistan, helping them to fight their NIAC against the Taliban.

However, Hamidullin has an innovative argument. He contends that the Geneva Conventions extend combatant immunity to deposed government forces who were protected by the privilege before they were removed from power. Here is the bulk of the argument:

Given the ongoing protracted conflict in Afghanistan, the displacement of the Taliban government in December 2001 did not fundamentally alter the fact that the conflict began as an international armed conflict between two contracting parties to the Geneva Conventions. Indeed, article 4(A)(3) of the GPW was designed to encompass the armed forces of a government that was deposed by an invading state. Specifically, the language defines prisoners of war to include
“members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” GPW, art. 4(A)(3), 6 U.S.T. at 3320, 75 U.N.T.S. at 138. This provision was an innovation over previous international treaties, and was specifically drafted to cover “members of regular armed forces, like the Free French in the Second World War.” George Aldrich, Symposium: the Hague Peace Conferences: the Laws of War on Land, 94 Am. J. Int’l L. 42, 43 (Jan. 2000). In other words, the GPW was intentionally crafted to
include the armed forces of a deposed government as prisoners of war, even when a successor government (i.e., the Vichy regime or the government of Hamid Karzai) is recognized by the detaining power (i.e., Germany or the United States) as the legitimate government of the territory.

The Commentary to the GPW likewise explains that this provision “covers armed forces which continue to fight in a ‘national redoubt’, under the orders of an authority or Government which has its headquarters in that part of the country while the occupying authorities may have recognized a Government, which may or may not support them, in that part of the country occupied by their troops.” Commentary on III Geneva Convention at 63-64 (Jean Pictet ed. 1960). Article 4(A)(3) thus applies in the context of a “partial or total occupation of the territory of a High Contracting Party,” GPW art. 2, 6 U.S.T. at 3318, 75 U.N.T.S. at 136, a condition under which the provisions of the Third Geneva Convention “shall apply.” Id

Does this argument work? As readers now, I am very interested in arguments regarding the extension of the combatant’s privilege to non-state actors in some very limited circumstances. (In general, I believe that the current literature over-simplifies the dichotomy between IAC and NIAC and falsely assumes that the privilege is never available outside full-blown IACs). It seems intuitively correct to me that it would be absurd for IHL to withdraw the privilege of combatancy the minute the government forces are forced from power and are rebranded–by their opponents–as rebels and non-state actors. On the other hand, does this grace period last forever? Say what you will about this argument, but the Taliban were forced from power a long time ago in Afghanistan.

I would note that the Pictet Commentary also includes the following passages, not quoted in the brief above:

It is not expressly stated that this Government or authority must, as a minimum requirement, be recognized by third States, but this condition is consistent with the spirit of the provision, which was founded on the specific case of the forces of General de Gaulle. It is also necessary that this authority, which is not recognized by the adversary, should either consider itself as representing one of the High Contracting Parties, or declare that it accepts the obligations stipulated in the Convention and wishes to apply them.

This latter paragraph raises two important questions that I direct to OJ readers. First, has the Taliban formally declared that it accepts the obligations of the Geneva Convention and wishes to apply them? Second, and more importantly, is the Taliban recognized as the legitimate authority of Afghanistan by third parties? I honestly do not know the answer to that question and would like to hear from readers on this point. I think the Pictet Commentary is suggesting here that this Geneva provision should not apply in the case of non-recognized forces whose lack of recognition flows not just from their adversary in the armed conflict but is, rather, universal non-recognition from everyone. This would seem to be an important qualification to prevent the provision from being manipulated.

Don’t Cry for Sovereign Debtors: Why Argentina’s Defeat in U.S. Courts Does Not Justify a Sovereign Debt Treaty

by Julian Ku

The Argentina sovereign debt mess is still not resolved, but already folks are debating its larger consequences for international economic governance. In particular, there continue to be calls for a new international sovereign debt mechanism to prevent another Argentina-style U.S. litigation. But although I agree that there are decent arguments for some sort of international treaty-based mechanism for sovereign debt restructuring, I disagree that the Argentina-debt litigation in the U.S. is one of them.  You can read a fuller (much longer) version of this argument in  the just posted issue of the University of Pennsylvania Journal of International Law.  

Two Interesting New Reports on ILC Website

by Kristen Boon

There are two important new reports up on the International Law Commission’s website.

First, Sean Murphy’s First Report on Crimes Against Humanity is now available.  The UN Doc symbol is A/CN.4/680; link to the report here.

The report is a terrific overview of the current gaps in the international legal architecture, and maps out steps towards a future convention.   The report also proposes two draft articles: one on prevention and punishment of crimes against humanity and the other on the definition of such crimes.   For background, see Leila Sadat’s Crimes Against Humanity Initiative here.

Hat tip to James Stewart for flagging this report.

Second, Sir Michael Wood’s Third Report on the Identification of Customary International Law is available now as well. The UN Doc symbol is A/CN.4/682, and the link is available here.    Readers may recall that last summer I asked whether Security Council acts are relevant to Customary International Law, and noted that the ILC’s treatment of the topic to date had not included a discussion of IOs.   This report remedies this lacuna in part in that it specifically addresses the acts of IOs.  However, its conclusion is that acts of IOs are generally irrelevant to the formation of custom.  Instead, the Report’s guiding assumption is that the practice of IOs is to be attributed to the states themselves, not to the IOs. As the report notes:

if one were not to equate the practice of such international organizations with that of States, this would mean not only that the organization’s practice would not be taken into account, but also that its Member States would themselves be deprived of or reduced in their ability to contribute to State practice.

This conclusion will be controversial:  even the report’s footnotes cite numerous scholars and states that express opposing views.

Both of these reports are likely to spur important scholarly debates.

Does Investor-State Arbitration “Weaken[] the Rule of Law”? Judith Resnik and Larry Tribe Seem to Think So

by Julian Ku

I have not been surprised by the swelling opposition in the U.S. (mostly from the progressive left) against proposed trade agreements with Pacific and European nations (TPP and TTIP).  But I am mildly surprised by the way in which TPP and TTIP opponents have zeroed in on the inclusion of investor-state arbitration mechanisms as a rallying point for their opposition.  Not only has former Harvard lawprof (and now U.S. Senator) Elizabeth Warren come out against the inclusion of investor-state dispute settlement (or ISDS), but yesterday, Yale law prof Judith Resnik and Harvard lawprof Lawrence Tribe, along with Nobel Laureate Joseph Stiglitz and a few others released a letter outlining their concerns with (really, their opposition to)  ISDS.  This letter is much more sophisticated and persuasive than an earlier lawprof letter Roger criticized here.  Indeed, its critique is far broader and echoes “sovereigntist” critiques that many on the political right have often applied to international tribunals.  Here is one snippet of their argument.

ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.

The letter valorizes U.S. courts and Article III judges, as well as the importance of democracy, and contrasts those institutions and values with the secretive ISDS process.  The main complaint, which is quite true, is that ISDS gives foreign investors a “separate legal system” to which others, including US citizens and corporations, cannot access. ISDS is not subject to any serious review by either courts or other arbitral tribunals.

None of the statements in the letter are inaccurate or incorrect. But they do leave out the basic assumption and rationale behind ISDS provisions. Foreign investors are presumed to be more likely to face disadvantages in a foreign legal system, which is why they are presumed to need “extra” protections from ISDS.  I think the rationale for ISDS is weaker for trade agreements between the US and Europe or the US and other developed industrialized countries.  But it is still probably true that there is a greater risk of discrimination against foreigners from a local legal system than against local companies.

I am not convinced of the necessity of ISDS in these trade agreements, but I don’t think it is necessarily a bad thing to include them either. I do recognize that these systems of dispute settlement do create non-trivial tensions with the domestic legal systems of member countries. In other contexts (law of the sea, ICJ/death penalty, etc), raising concerns about these tensions has been associated with the political right. So it is interesting to see progressives borrow sovereigntist arguments in their campaign against ISDS.

 

Why We Should Listen to President Obama Rather than Candidate Obama on Unilateral Presidential War Powers

by Julian Ku

I had the pleasure of participating on a panel a couple of weeks ago on Presidential War Powers, in light of the recent proposal to authorize the use of force against ISIS.  The panel was hosted by the New York City Bar Association and chaired by Prof.Jonathan Hafetz of Seton Hall. It included Prof. Ryan Goodman of NYU and Prof. (Lt. Col.) Walter Narramore of West Point.  C-Span aired it last night and the video can be found here.

To give you a sense of my talk (which starts at 36:00), here is a brief summary.

In 2008, then-candidate Barack Obama stated that he believed the President cannot constitutionally use military force absent congressional authorization except in response to an imminent attack or threat.  But since he has taken office, the President has abandoned this view, most notably in a legal memo from his Justice Department justifying military intervention into Libya.   In my view, this shift provides strong evidence that the strict congressionalist view of presidential war powers is untenable.   I concede that there may be other limits on unilateral presidential use of force (e.g. congressional prohibitions, long-term interventions amounting to a “war”, etc.) but we should no longer take seriously the strict congressionalist position articulated by Candidate Obama in 2008.  

 

Sobering State of Play for Upcoming NPT Review Conference

by Kristen Boon

A new report entitled “Nuclear Weapons: the State of Play 2015” makes for very sober reading. The authors are Gareth Evans, Tanya Ogilvie-White and Ramesh Thakur, and the report was written for the upcoming NPT review conference.

Gareth Evans is on a world-tour releasing the report, and yesterday I saw him at the International Peace Institute in New York. You can watch his excellent presentation here.   He noted that five years ago, there was reason for optimism on the disarmament front: President Obama gave his famous Prague speech, the Test Ban Treaty was ratified by the Senate, and new START agreements were put in place.  All signs of progress. By 2012, optimism had started to fade, and now it has all but disappeared (with the important exceptions of progress on negotiations with Iran, and a new effort to focus on the humanitarian consequences of Weapons of Mass Destruction (WMDs). There is a clear reemergence of cold-war thinking about the deterrent utility of WMDs.  Moreover, there are increasing risks due to new technologies and the potential of sabotage.

The report also illustrates that States are not very serious about disarmament.  They have not committed to a timetable on reducing stockpiles, and at present, every nuclear power state – the 5 States party to the NPT, and the 4 outside – foresee indefinite retention of their WMD.  While the report notes some progress on verification, there has been little to none with regards to transparency and irreversible dismantlement of weapons.  The global total of warheads is now approximately16,400. Moreover, we are seeing Asian states increasing their stockpiles, although Evans noted they are proceeding from a small base.  The report is very well organized with a color-coded progress rating on multiple issue areas, and well worth reading.

Despite – or rather because of – the seriousness of the current situation, Evans, and discussant Angela Kane, UN High Representative for Disarmament Affairs, emphasized that it is an extremely important time to maintain energy and bottom-up pressure.  Let’s hope this guide becomes a useful tool for negotiators at the meetings starting next week.