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Opinio Juris and the Trump Presidency

by Chris Borgen

A couple of weeks ago a group of Opinio Juris bloggers held a round-table discussion at St. John’s University Law School about the international law and policy issues facing the next American President. In front of a full room, we considered issues ranging from relations with China and Russia, to the future of national security policy, human rights, international trade agreements and the UN.  We fielded questions from the audience, went past our scheduled closing time, and still had not answered all the questions in the room. It was clear that there is a need and a desire for intelligent discussion on these and other issues of international law and U.S. policy. There were, and are, significant questions of law and policy before the American public.

Now we know who the next President will be. Sustained and informed commentary about international law and the United States’ role in the world has never been more relevant.  We founded Opinio Juris as a forum for engaged and intelligent discussion on a broad range of international legal issues.  We have fostered a dialogue with voices from varying political, legal, and national perspectives. Among the hundreds (if not thousands) of issues we have covered, we have had commentary by sitting Department of State Legal Advisers on Bush Administration policies in the War on Terror and also concerning the U.S. operation against Osama Bin Laden during  the Obama Administration, as well as expert observations from the negotiations in Paris leading to the climate change agreement (see, for example, 1 and 2), examinations of the development of international criminal law, analyses of the  work of international courts and tribunals, emerging technologies and international law, and conversations about U.S. policy on the conflict in Syria. For the last eleven years we have tried to reflect upon the breadth and depth of international law and policy.

As the U.S. begins its transition into what will be the Trump Administration, we will continue to provide commentary that is informed by expertise in international law and is engaged with the policy debates of our time. A brief scan of the list of initiatives Donald Trump listed in October as the priorities for his first 100 days in office is full of international legal implications. He stated that on his first day in office, among other things:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator

* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately…

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America’s water and environmental infrastructure

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

* THIRD, cancel all federal funding to Sanctuary Cities

* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

This is only part of the list. For example, other statements from President-elect Trump or his surrogates have concerned whether the new administration would honor U.S. obligations under the Geneva Conventions and international humanitarian law, the future of NATO, and commitments to address climate change, to take three examples.  As the transition proceeds and President-elect Trump’s actual agenda takes shape, we will assess and address the international legal issues implicated by his proposals and stances. More generally, we will continue to thoughtfully consider the expansive international legal and policy issues facing the U.S. We hope to add to an informed public discourse.

We started this website as a forum for debate and discussion about international law and policy. Almost 10,000 posts later, this conversation has never been more important and we look forward to hearing what you have to say in the days and weeks to come.

New Report on European Counterterrorism Practice

by Deborah Pearlstein

Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations, has an interesting new report out about developing ways in which European governments are using force abroad to combat the threat of terrorism of various sorts. The study is full of useful data points so is worth reading in its entirety, but I write here briefly to emphasize a conclusion it does not reach. The way the study is pitched at the outset of Dworkin’s blog post about its issuance – emphasizing the convergence of U.S. and European counterterror legal theories – those reading quickly might imagine it to support the view that various European powers have at long last embraced the United States’ novel post-9/11 legal theory of a global, non-international armed conflict (NIAC) against Al Qaeda, the Taliban and associated forces. But the study itself makes clear that while France and Britain, for instance, have come to use force in Syria and Iraq for various reasons, it is not the case that their engagement in this conflict reflects an acceptance of the concept of a global NIAC. See, for example, this section:

“In one important respect, however, European governments involved in counter-terror wars have stopped short of the expansive legal position adopted by the United States. EU member states (including France, despite the rhetoric used by government officials) are united in rejecting the notion of a single transnational armed conflict with the ISIS or al-Qaeda network. In the words of one British official, they continue to treat these terrorist groups as presenting a series of ‘specific threats in specific locations….’ This approach reflects both a strategic view about the most effective approach to fighting terrorist organisations and a legal analysis that rejects the notion of a geographically unbounded armed conflict against a non-state group.”

Recent practice of a few European states to be sure bear on other important questions of, for example, the extent of the embrace of the U.S. “unwilling or unable” theory of overcoming sovereignty objections to the use of force; and, for example, how international human rights law is thought to inform state use of force in self-defense against terrorist groups. But those looking for evidence of European support for the existence of such a thing as a transnational NIAC won’t find it here.

International Law and the U.S. Election: Trumpxit, Syria and State Marijuana Laws

by Julian Ku

Those of us here in the US are pretty obsessed with tomorrow’s U.S. presidential election (and from what I can tell, those of you outside the States are pretty interested as well). International law has not been a huge issue in the election, but I do think tomorrow’s result could have at least three big impacts on the international legal system.

Trumpxit

As I have noted in earlier posts, Republican nominee Donald Trump has been notable for pledging to renegotiate and possibly terminate numerous U.S. international agreements.  Most clearly, he has pledged to withdraw from the Paris Climate Change Agreement and the Iran Nuclear Agreement. He has also pledged at various times to withdraw from the North American Free Trade Agreement, the US-Japan Defense Treaty, and the North Atlantic Treaty Organization.

As a legal matter, there is no doubt in my mind that a President Trump would have the legal power to terminate the Paris Agreement and the Iran Agreement on his first day in office without any authorization by Congress.  Both of those agreements were concluded as sole executive agreements, and most of the provisions are also legally nonbinding political agreements.

I also think that under existing US precedent, a President Trump could unilaterally terminate US participation in NATO and the US-Japan Defense Treaty.  As I noted earlier, the US Supreme Court in Goldwater v. Carter refused to block a similar presidential termination of the US-Republic of China (Taiwan) Defense treaty and although that case is not entirely clear, it seems likely that the president can do this on his own.

As I also noted, however, it is much less clear if the President can unilaterally withdraw from NAFTA and other trade agreements because those agreements have been codified by statute.  This would raise the “Brexit” scenario currently embroiling the UK.

In any event, I think “Trumpxit” is probably one of the biggest consequences of electing the GOP nominee because his powers in this area are largely unilateral and do not require Congress.

US Military Action in Syria

As Deborah has explained on this blog in recent weeks, the US is currently engaged in some sort of “armed conflict” in Syria that doesn’t seem to clearly fit into the Geneva Convention’s categories for either international or non-international armed conflicts.  On a domestic legal front, the US Congress has not specifically authorized the action in Syria as well, making its domestic legality questionable at the very least.

The next President will have to decide how to frame the Syria conflict under international and US constitutional law. My guess is that both Clinton and Trump would follow the Obama approach of treating the conflict as a non-international armed conflict against the Islamic State that is authorized by the 2001 congressional authorization for the use of force.  But this is something the next President will have to engage with seriously, since there continue to be serious doubts about the legality of US actions in Syria.

More US Violations of Drug Control Treaty

Five more US states have referenda tomorrow to legalize recreational marijuana.  If approved, this would mean nine US states plus the District of Columbia have legalized recreational marijuana, and many more have legalized medical marijuana.

It seems clear that continued non-federal enforcement of marijuana prohibitions in these states would violate US obligations under drug control treaties.  There are at least three that arguably conflict with legalized marijuana: The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  As this fine Brookings Institution report notes, the US is going to be in clear violation of these treaties soon and needs to renegotiate them to accommodate US state laws.  Presumably, this is on the agenda of the next President (low on the agenda, but on there somewhere).

Ratification of the Law of the Sea Treaty

Most projections indicate the US Senate will remain deeply divided (maybe even 50/50) between Democrats and Republicans.  If so, I don’t think there is a high likelihood that proponents of US ratification of the UN Convention for the Law of the Sea will have enough votes to push it over the 67 vote threshold.  We may see another effort, however, if the Democrats unexpectedly pick up a strong majority of seats (say in the 53 plus range).  There continues to be strong support in the US Navy and in US energy circles for US ratification so it is still on the agenda.

o o o

I am sure I am missing a few issues. Readers should feel free to add in the comments any other international law issues that are likely to be affected by tomorrow’s results.

Addressing the Urban Future

by Chris Borgen

Urbanization is our present and it is our future. Between the recently completed UN Habitat III conference in Quito, Ecuador, and Iraqi Special Operations entering Mosul, starting what may be a complex urban battle, we face constant reminders that  much of the world’s population now lives in cities. How we protect rights, foster development, interact with the environment, organize politically, and fight wars is increasingly an urban story.

Consider the bleak picture of megacities and the future of combat in this leaked Pentagon video (at the link and also embedded above). Some key take-aways from the video:

  • By 2030 60% of world’s population will be in cities. Most of the urban growth will be in the developing world.
  • Illicit networks will fill the gaps left by overextended and undercapitalized governments.
  • Growth will magnify the increasing economic separation between rich and poor, even thought they may be in close proximity. Uneven growth means that slums and shantytowns will rapidly expand alongside ever increasing levels of prosperity.
  • Moreover, religious and ethnic tensions will be a defining element of these urban environments
  • Megacities are complex systems where people and structures are compressed together in ways that defy both our understanding of city planning and military doctrines.
  • Living habitats will extend from the high-rise to the ground level cottage to subterranean labyrinths, each defined by its own social code and rule of law.
  • Social structures will also be stressed. Criminal networks will offer opportunity for the growing class of unemployed  and will be part of the nervous system of non-nation state, unaligned, individuals and organizations that live and work in the shadow of national rule.
  • There will be increasing complexity of human targeting as proportionally smaller number of adversaries mix with an increasingly large population of citizens.
  • The interactions of governmental failure, illicit economies,  economic growth and spreading poverty, informal networks, environmental degradation, and other factors leads to an environment of convergence hidden within the enormous scale and complexity of megacities, which become the source of adversaries and hybrid threats.
  • Classic military strategy counsels either (a) avoiding the cities or establishing a cordon to wait out the adversary  or (b) draining the swamp of non-combatants and then engaging the adversary in high-intensity conflict. But megacities are too large to isolate or cordon in their entirety.  The U.S. military will need to operate within the urban environment and current counterinsurgency  doctrine is  inadequate to address the sheer scale of megacities
  • “This is the world of our future. It is one we are not prepared to effectively operate within and it is unavoidable.”

According to FoxtrotAlpha, this video was produced for a course at the Joint Special Operations University on “Advanced Special Operations Combating Terrorism,” it is focused on urbanization from the perspective of military planning. A 2010 issue of the International Committee of the Red Cross’s journal was devoted to humanitarian law and conflict in built-up urban areas. The ICRC also had recommendations for the UN’s Habitat III conference that just ended.

The topics covered, though, are very much the province of law and lawyers, including the needs of the urban poor, the operations of criminal networks, environmental degradation and climate change, the law of armed conflict and targeting in built-up areas, informal rulemaking in communities (“order without law”), informal markets and economies,  and the role of non-state actors, to name only some of the topics that crop up. While this video is (understandably) focused on the implications on combat operations, what I also see is the need for sustained  engagement in the protection of human rights, the distribution of public goods, the fostering of inter-communal dispute resolution, and the spurring of bottom-up economic development in megacities.

The video emphasizes that the future is urban. But, as the writer William Gibson has said, “The future is already here; it’s just not very evenly distributed.”

 

Opinio Juris Live: The New American President and Crises in Global Order

by Chris Borgen

This Wednesday five of us from Opinio Juris will convene at St. John’s Law School for a roundtable discussion on The New American President and Crises in Global Order.

The program is sponsored by St. John’s Center for International and Comparative Law (which I co-direct with Peggy), together with the American Branch of the International Law Association and the New York State Bar Association, International Section Committee on Public International Law.

Julian, Peggy, Kristen, Deborah and I will have our hands full. Between Syria, Brexit, the Trans-Pacific Partnership, Crimea, Libya, allegations of Russian hacking, the global migration crisis and tensions in the South China Sea, among other topics, we will have no shortage of interesting and timely issues for our discussion. And we will open things up for comments and questions from the audience.

The discussion will be at 4:30 pm on Wednesday, October 26th.  I’ll post a summary afterwards.

Håkan Friman

by Jens David Ohlin

I am very sorry to report the shocking news, that many have already seen on Twitter, that Håkan Friman has passed away, much too young.

Anyone involved in international criminal justice surely knows Håkan’s name, and more likely than not, knew Håkan personally. In addition to his many many academic publications on international criminal law (including the well-known Introduction to International Criminal Law and Procedure by him, Robert Cryer, Darryl Robinson, and Elizabeth Wilmshurst), Håkan was a Judge on the Solna District Court in Sweden, and also held several academic appointments along the way.  Håkan also had a distinguished career with Sweden’s ministry of justice and was a key member of Sweden’s ICC delegation to the Rome Diplomatic Conference, where it all began.  He was a mainstay of academic conferences on multiple continents.  I hosted him at Cornell once for my course called the Jurisprudence of War, where he led a masterful session on the crime of aggression and the Kampala amendments. On more than one occasion, his name came up in conversations I had with others when we discussed ideal candidates to be a judge on the ICC some day.

More importantly, Håkan was an absolute gentleman to every person in the profession.  It didn’t matter whether you were the most junior of doctoral researchers or the most senior jurist at an international tribunal. He was equally kind and generous to everyone.

He will be missed.

 

UPDATE: The International Criminal Court has issued this statement:

It is with great sadness that the International Criminal Court learnt of the sudden passing of Senior Judge Håkan Friman, Head of Division at Solna District Court (Sweden) on Monday, 17 October 2016.

As a former member of the Swedish Delegation on the ICC, a magistrate and the author of many international criminal law publications, Mr Friman made an invaluable and lasting contribution to international criminal justice. Mr Friman had a prominent role in the drafting and adoption of the Rome Statute, as well as in the development of the Rules of Procedure and Evidence and Regulations of the Court. He was also called upon on numerous occasions in an expert capacity to assist in initiatives to enhance the efficiency and effectiveness of the Court’s operations. His commitment, expertise and warm personality earned him countless friends in the field of international criminal justice.

The Court presents its sincere condolences to Håkan Friman’s family and friends in these difficult moments.

Still on that Syrian IAC

by Deborah Pearlstein

Thanks to Ryan Goodman for his thoughtful entry in our ongoing discussion about the existence of an international armed conflict (IAC) in Syria. For those just joining, I’d questioned Ryan’s analysis that an IAC exists in Syria as between Syria and the United States on the grounds that none of the three recent events Ryan cited in support for his conclusion – the putative existence of a U.S.-backed “no-fly” zone in country, the United States’ mistaken attack on Syrian forces (which the U.S. says it mistook for ISIL forces), and the U.S. support for Turkish operations in northern Syria – established that the United States was now a party to a conflict against Syria (any more than earlier U.S. operations had established as much). Ryan responds solely on the matter of U.S./Turkish operations in the north, arguing that an area of northern Syria is now subject to occupation by Turkey, and that the United States is a “co-belligerent” with Turkey in this occupation.

Let me begin with an area of agreement – that if one state occupies the territory of another state it triggers an IAC. Is that what’s happening in Syria? I suspect Turkey and the United States would quibble with that characterization of affairs – both Turkey and the United States have stated that the area of concern is in the control of the Free Syrian Army, who have the support of coalition and Turkish forces. But for these purposes let us assume the situation is simply a partial occupation of Syria by Turkey. The core question here with respect to the United States’ status is whether its involvement demonstrates its co-belligerency with Turkey (against Syria).

Whatever else might be said about the concept of “co-belligerency,” a model of legal clarity it is not. Ryan cites to several useful posts on the topic (in a different context) by Just Security’s Nathalie Weizmann; and Rebecca Ingber has an indispensable article on the topic as well. Two points I think especially important for present purposes. First, as both Nathalie and Rebecca explain, co-belligerency is a concept from the (pre-UN Charter) law of neutrality that has been imported into the law of armed conflict; its scope and applicability in the modern law of even IAC remains the subject of much debate and little if any authoritative guidance. Nathalie and Rebecca thus rely mostly on arguments of various scholars to unearth its meaning. That said, second, as Nathalie describes it: “Under the law of neutrality, a State will become a co-belligerent when, in association, cooperation, assistance or common cause with another belligerent it participates in hostilities to a significant extent or it systematically or substantially violates its neutrality duties of impartiality and non-participation in the conflict.”

Is the United States (and for that matter, other air forces in the “coalition” it describes as participating in the north) “systematically or substantially violat[ing] its neutrality duties of impartiality and non-participation in the conflict” by supporting a Turkish occupation of Syria? I think it is certain that the United States would strongly contest that assessment. In the DOD press conference cited in Ryan’s original post regarding the fighting in northern Syria, the Pentagon spokesman was at pains to make clear that U.S. activities in the region were exclusively focused on attacking ISIL full stop: “When they [Turkish forces] began to focus on something other than ISIL then I think we had to withdraw our support for that. And so I think we are now trying to keep those elements separated and focused on the counter ISIL fight at this point….. [W]hat we have made clear is that our support is — our support to all parties is contingent upon the focus on ISIL. And that will be how we will continue to do this.” The news stories Ryan cites on the U.S. role in the region are consistent with this statement. From this I glean not only does the United States not share common cause with Turkey to the extent of any Syrian occupation, but that the United States does not cooperate, assist, or in any other way support Turkey to the extent that state is participating in any Syrian occupation.

While I think the public reports of activities in the region are all consistent with this view, my point here could hardly be to hope to settle definitively what exactly the United States and its allies are doing in northern Syria. The open sources speak for themselves, but undoubtedly do not contain the whole story. My point is rather, as I put it in response to Ryan’s original post, I think the claim that the United States is a co-belligerent in an IAC in Syria (based on these events) is hardly clear. Given that legal uncertainty, and given what I believe (and still believe) are significant negative policy consequences that would flow if the United States decided to publicly announce it was engaged in an IAC in Syria, I would not encourage the U.S. government to pursue such an announcement.

A Syrian IAC?

by Deborah Pearlstein

Like Gabor Rona, I, too, found Ryan Goodman’s post yesterday at Just Security intriguing. Further to our ongoing discussions here (e.g.) and there (e.g.) about the classification of armed conflicts, Ryan’s claim is that in light of three recent events (noted below), the armed conflict in which the United States is engaged in Syria (a conflict I think most have understood as a non-international armed conflict (NIAC) between the United States and certain non-state groups (including ISIL and Al Qaeda and associated forces)) is now international in nature – a conflict between (among others) the United States and Syria. He further argues that the ability to now classify the fighting as an international armed conflict (IAC) is a good thing for two main reasons: (1) the IAC designation triggers an obligation among all states (under the Geneva Conventions) to try or extradite those suspected of war crimes in that conflict, with the effect, he argues, of ratcheting up the diplomatic pressure on Syrian officials; and (2) it is possible for the United States (and presumably others) to reap the benefits that come with the legal classification “IAC” without also absorbing the burdens associated with (I take him to mean) the legally meaningless but politically weighty description, “war.” I disagree with Ryan’s analysis that the conflict is, for the reasons he gives, now an IAC. More, I tend to see the relative political and legal consequences of a U.S. recognition of such a conflict as having exactly the opposite effect he anticipates. Here’s my thinking. (more…)

The NIAC Threshold

by Deborah Pearlstein

At least three things trouble me about Adil Haque’s recent post over at Just Security about how to determine when armed violence crosses the threshold from ordinary criminality or the like to non-international armed conflict (NIAC), such that the law of armed conflict applies. As Adil rightly notes, much rides on the question. On one hand, recognition of a NIAC imposes on all parties to the conflict an obligation to comply with, at a minimum, the humanitarian provisions of Common Article 3 to the Geneva Conventions (prohibiting torture, cruelty, and much else). On the other hand, under the law of armed conflict (LOAC), a state party can use force anytime and against any member of an opposing force. In armed conflict, and in no other circumstance, killing is lawful as a first resort. For this reason, among others, Adil’s suggestion that we should lower the threshold for recognizing the existence of a NIAC, i.e. apply the law of armed conflict even for nominal levels of violence involving non-state actors, merits careful attention. So here are some initial concerns… (more…)

Vacancy: Director of the Irish Centre for Human Rights

by Kevin Jon Heller

The National University of Ireland Galway seeks to appoint a Professor of Human Rights Law and Director of the Irish Centre for Human Rights, within the School of Law.

The Irish Centre for Human Rights has developed a global reputation for excellence in the field of human rights teaching, research and advocacy, which has enabled it to attract high quality students to its acclaimed postgraduate and undergraduate programmes. Its success is reflected in the calibre and diversity of its doctoral and masters students in particular.

[snip]

In filling the Established Professorship in Human Rights Law, NUI Galway is seeking a person with an international reputation for academic excellence in Human Rights Law combined with strong leadership skills who will complement the existing strengths of the Centre and enable it to develop new areas of activity in line with its future strategic priorities. S/he will normally have a doctoral- level degree in Human Rights Law and a substantial record of teaching and research, the later evidenced by substantial publications in the broad field of human rights. The post-holder will also be the Director of the Irish Centre for Human Rights at a critical time in its development having enjoyed tremendous success, nationally and internationally, particularly since 2000.

[snip]

The post-holder, as the recognised leader of the sub-discipline of Human Rights in the School of Law, will contribute to the development of the education and research programmes of the School. The Established Professor of Human Rights Law, in his or her role as Director of the Irish Centre for Human Rights, will also contribute positively and proactively to the collective leadership of the School of Law. S/he will be expected to work with colleagues in the Irish Centre for Human Rights, the School of Law and other stakeholders to develop an ambitious Strategic Plan for the Centre reflecting the most relevant emphases of the University’s current strategic plan, Vision 2020.

[snip]

For informal enquiries, please contact Professor Donncha O’Connell, Head of the School of Law, NUI Galway, Email donncha [dot] oconnell [at] nuigalway [dot] ie or telephone: +353 (0)91 492388.

Additional information on the Irish Centre for Human Rights, NUI Galway is available at:http://www.nuigalway.ie/irish-centre-human-rights/.
Information on the University’s Strategic Plan is available at: www.nuigalway.ie/vision2020

Salary:
€106,515 to €136,275

(This appointment will be made on the Established Professor scale in line with current Government pay policy)

(For pre 1995 public sector entrants in Ireland, the D class Salary rates will apply)

Closing date for receipt of applications is 17:00 (Irish Time) on Thursday, 20th October 2016. It will not be possible to consider applications received after the closing date.

The Strategic Social Construction of Cybernorms

by Duncan Hollis

A few years back, I was lucky enough to be invited by research scientists at MIT’s Computer Science and Artificial Intelligence Lab — especially the late Roger Hurwitz — to participate in a Minerva Grant project studying norms and governance in cyberspace.  In the interim, norms have become one of the hot topics in cybersecurity discussions in international fora. Together with Martha Finnemore, I began to think more about the processes by which norms work, including the ways they relate to international law.

I’m pleased to report that after a couple of years of research and thinking, Marty and I have the results of our work forthcoming in the American Journal of International Law:  Constructing Norms for Global Cybersecurity.  You can get a preview of the article on SSRN here.  And, for those looking to learn more about our piece, here is the abstract:

Cybersecurity now stands at the top of the U.S. security agenda. As sources of cyber insecurity have proliferated, States and other stakeholders have increasingly turned to norms as the regulatory tool of choice, hoping to shape the behavior of diverse actors in this space. Proponents of cybernorms have so far focused on what the new norms should say and on what behaviors they should require or prohibit. They have paid little attention to how new norms would actually work—how they could successfully be constructed and the processes by which they would create desired effects. In other words, they have paid a lot of attention to the “cyber” component of cybernorms but very little attention to the “norms” component and the issues of how normativity actually works in the world.

In this Article, we offer an inter-disciplinary analysis of the processes by which cybernorms might be constructed and some of the choices and trade-offs involved in doing so. We first situate the current discourse in the varying contexts surrounding cybersecurity. We define the norm concept and examine the diverse array of norms currently populating the landscape of cyberspace. We next draw on the rich body of work in social science about norm construction in other policy areas to understand how norms can be cultivated successfully and how they create effects, both intended and otherwise. Of course, if cyberspace is unique, lessons from other policy domains might not be applicable but we assess these arguments and find them unconvincing.

Our paper then unpacks some of the strategic choices facing norm promoters in their decisions on which norms are needed, who should conform to them, not to mention where and how they should do so. We do not prescribe a particular path for norm promoters, but rather emphasize the need to recognize and accommodate the consequences and trade-offs these choices involve. Our paper thus offers lessons for States, industry, civil society, and others interested in promoting norms in cyberspace. By situating our work in both international law and international relations, this paper also provides a case study of the strategic social construction of norms that offers both political scientists and international lawyers more information on how non-legal mechanisms could regulate global problems like cybersecurity.

Comments and thoughts on the article are most welcome as Marty and I are continuing to do more research and writing in this space.  Next up, is a project that assesses various ways to institutionalize a norm such as the duty to assist idea that I first called for a few years back.

 

New (And Better) Eligibility Rules for the Lieber Prize

by Kevin Jon Heller

Last year, I criticised ASIL for limiting its very prestigious Lieber Prize to academics under 35. I described that limit as “ageist,” noting that in today’s academic world there are many law professors over 35 who, because they joined academia late, should rightfully be considered junior scholars. So I am delighted to note that ASIL has changed the eligibility criteria for the 2017 Lieber Prize:

Anyone may apply for the article or book prize. For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in academic teaching or research position. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

This is a much better approach to eligibility. Kudos to ASIL for the change.