One authority, clearly not inherent but which Congress might wish to provide [in the proposed bill], would empower the President to use force pursuant to a decision of the United Nations Security Council — as President Truman did in Korea, with the difference that Truman acted unilaterally, asserting an inherent authority. It seems inconceivable that Congress would wish to thwart the United States’ participation in any multilateral use of force on which the Security Council could unanimously agree, particularly if the President had consulted with the congressional leadership before participating in the United Nations’ decision. From the President’s perspective, genuine consultation would be the essence of prudence, since an extended use of force would eventually require congressional approval. Such a pre-authorization to the President could, in an international emergency such as the Korean intervention, prove useful and would serve, by its very existence, as a symbol of American support for multilateral, consensus-based U.N. action.

A similar authority for multilateral action would empower the President to use force in cooperation with America’s democratic allies under circumstances wherein military intervention could have decisive effect in protecting existing democratic institutions in a particular foreign country against a severe and immediate threat. As with the U.N.-related authority, built-in constraints on the President would derive from the need to act multilaterally and the eventual need to obtain congressional authorization for a sustained use of force

Joseph R. Biden Jr. & John B. Ritch III, The War Power at Constitutional Impasse, 77 Geo. L.J. 367, 397-98 (1988). Biden appears in the end not surprisingly to have dropped the idea when putting the proposal into bill form. You have to wonder if Biden actually read the article published under his name, unlike plagiarized biographies no great sin in the world of Washington (co-author Ritch, then Biden’s aide, is now director general of the somewhat scary sounding World Nuclear Association).

Bad idea? Maybe we’ve come around to a world in which Tom Franck’s then-daring proposition (elaborated here and in the memorable 1991 N.Y. Times op-ed, “Declare War? Congress Can’t”) doesn’t seem so outlandish any more. (Some hint here also along the lines of the Concert of Democracies.) I doubt we’ll hear too much from the Democratic ticket during the campaign about deferring to Turtle Bay, but perhaps we might see possibilities in this direction after inauguration day.

Well.  I declined in that post to say anything about the current situation.  Although I’ve been pressed by a couple of friends since to say something more current, I’ve hesitated.  I’ve only been in Tbilisi a couple of times since, and I have not spent time focusing on the political situation there and the development of its democracy or the US role in Georgia.  Anything I have to say can and should be reasonably discounted as possibly unwarrantedly fixed on the situation from fifteen years ago.  At the same time, however, the wars of fifteen years ago are what the current situation is largely about  (”frozen conflicts” was and is an apt term) so speaking from fifteen years back has advantages and disadvantages.  Moreover, many of the people with whom I’ve spoken about the situation today appear to be not much aware of the conduct of those wars by both sides - unlike, by sharp contrast, their deep awareness of the conduct of the Yugoslav wars.  Often their awareness of Georgia appears to have been quite limited to Tbilisi; not that many people appear to have had much contact with the secessionist territories themselves.  That said, here are my basic concerns; take them for what you think they are worth, and I fully understand that many will disagree:

Rolling back Russian expansionism.  First, I share unreservedly the belief that Russia is deliberately undertaking a dangerous, threatening, imperial expansion in the “near abroad” and that it must be opposed and rolled back.  I am as tough on this point as any conservative.  I will here be a bit politically chauvinistic and add that I do not mean this in the way that, I sorrow to say, many of my friends on the liberal left so often mean it - gosh, that’s really terrible of Russia, and we should consult with our Western European allies and send some stiff diplomatic notes, and let’s be sure to have some Security Council meetings so that Russia can … veto any relevant resolution.  I share the analysis of Russia’s strategic actions that, for example, my Hoover colleague and friend Victor Davis Hanson has offered in the National Review, and endorse Fred Kagan’s eminently sensible proposals in the Weekly Standard.  The US may not be prepared to go to war over Georgia nakedly, but it should be prepared to staff it with advisors, equipment, technology, and intelligence.  I would not be unhappy to hear (but have no reason to know anything about it, let me be clear) that US military advisors were advising or assisting Georgian forces in the fighting.  I believe we are on our way back to a period in which the US will have to confront, not a superpower projecting power around the world, as in the Cold War, but a regional superpower whom the US will have to confront with force, using proxy forces in various places.

When I say ‘rolling back Russian imperialism’, I really do mean making it pay a material price in its military, its economy, and elsewhere for its adventurism in the near abroad.  It does not mean open war with Russia in this instance, but it means a lot more than mere diplomacy.  

Moreover, one thing that needs to be made clear is that describing what the US and NATO do to help Georgia as “humanitarian” is a mistake, and a profound one.  The whole point about humanitarian aid is that outside parties are morally and legally entitled to send aid irrespective of any other political considerations for the succor of civilians.  The point of aid to Georgia is not neutral humanitarian aid alone - that’s merely the unquestioned and unquestionable beginning - but military, economic, and other assistance that is aimed at strengthening it military, politically, and diplomatically.  We have a side in this - we have a dog in this fight - and that needs to be at the root of our actions.  But, as the third and fourth point below emphasize, the most fundamental dog we have in this fight is countering and checking Russia. 

What is NATO?  Second, NATO is going to undergo a reshaping in two directions out of this crisis, in the ways offered by Robert Kagan in his new Weekly Standard essay.  On the one hand, the idea of NATO evolving into some kind of post Cold War ‘legionnaires of the good guys’, into which Russia would eventually become attached in some friendly way, is dead.  It was dead for many reasons before this - to start with, the conversion of a club of mutual protection into a club of general cosmopolitan altruism never took account of the unwillingness of Europe, let alone America, to pay for it, or staff it.  On the other hand, the idea of NATO as a genuine mutual protection club is back, at least as far as the Eastern Europeans are concerned; since the Western Europeans are much more interested in gas than protection, however, the forward path of NATO as a re-invigorated mutual protection association is cloudy.  How long can a free rider club last if its guarantor starts to incur serious costs?  I don’t know, but I doubt the answer is forever.

Who should actually govern South Ossetia and Abkhazia?  Third, however - and this is where things get messy - it is a grave error to conflate rolling back Russian expansionism with the idea that Georgia should have actual political, security, and military control over South Ossetia and Abkhazia.  This is a difficult point, but it is essential.  Based on what I saw in the brutal, unforgiving, as-bad-as-Yugoslavia, ethnic cleansing wars of fifteen years ago, in my view it is simply impossible for Georgia to govern those territories.  I don’t think it was possible from the moment that Georgia declared independence; after all, secession happened practically moments later.  And I emphatically believe that the level of brutal violence on each side sealed it.  

Sure, you can tell me that was all a long time ago.  You can tell me that the Georgian military is now US trained and no longer the militia army of pillaging, raping thugs it was fifteen years ago (as were the militias on the other side, let me be entirely clear - not as some puerile point of moral equivalence, but simply because it was true).  You can tell me about how Georgia is a democracy now and allied with the US and NATO and those things wouldn’t happen any more.  

Maybe.  But frankly I doubt it.  I doubt it because fifteen years ago is nothing in conflicts such as these.  When, in the earliest days of the Croatia and Serbia war, before the fighting had actually broken out, I happened into a couple of completely empty villages; the populations had fled into the forests because, as they told me when they finally returned, they remembered what had happened in the Second World War - fifty years before, not fifteen.  The pillaging irregulars who were right behind the Russian troops when they retook South Ossetia and invaded Georgia proper - they are what these wars are all about.  The American policy maker who assumes blithely that this is what the other side does, but not the Georgians, runs against historical experience.  And against the ‘uncompleted’ nature of the earlier wars: the last fifteen years have been a pause in those wars, not some kind of new beginning, at least as far as the territories, and their relationships to Georgia and Russia are concerned.  

Finally, the nature of the conflict - its objectives - argues strongly for a war consisting of ethnic cleansing and all the atrocities that go along with it.  It is not by excess that the methods of war on both sides consist of driving out civilians of the wrong ethnicity - it is by rationality because, as in Yugoslavia, that is what the war is about.  Western policymakers who bet on the reformed Georgian army, and who base the moral superiority of the cause not merely on rolling back Russian imperialism but run it together with actual Georgian political, security, and military governance of the contested provinces, risk losing all that high ground if - when, in my view - the Georgians take up what, in stark terms, are the most realistic methods of fighting.  It is worth recalling that no one thought it necessary to make Kuwait into more than it was in order to defend the principle of rolling back its annexation by Saddam’s Iraq.  Democratic Georgia, I hasten to add, is a long way from the corrupt little principality that was Kuwait, but the abstract point is the same - the principle of defense of a sovereign state from attack and occupation is perfectly justifiable on its own terms.

Moreover, the war to govern these territories is a war the Georgians cannot possibly win in the long run, and that is true even if there were no Russia, unless Georgia were willing to contemplate genuinely appalling measures.  Yes, the problem of protecting ethnic Georgian enclaves in South Ossetia and Abkhazia is a deeply serious one, precisely because the only language either side has understood in the earlier phases of conflict has been ethnic cleansing of civilians.  But the only way for Georgia to run, actually govern on the ground, those places is by pushing the locals out of their own territories.  When observers today, in other words, describe the “irregulars” who come behind the Russian army into Georgian territory and loot and pillage the place, they have this tendency to assume that the other side would not engage it such behavior, because they haven’t seen it.  And maybe the Georgians wouldn’t, today.  But they did, with as much gusto as the other side, fifteen years ago.  I think it is a leap of faith to think that, given the unsupervised opportunity and having the motive, they would not do so today.  Does the US really want to base its policy, not on rolling back Russian expansionism for the evil it is, but on the leap of faith that the Georgian forces really have changed, including when they occupy enemy villages?  Is that leap of faith a prudent basis for US policy?  Not in my estimation. 

It cannot possibly be, in other words, in the foreign policy interest of the United States to commit itself to a policy of actual, in-fact Georgian political and military and security control over Abkhazia and South Ossetia.  It would be in the same general ball-park as suggesting that, in the name of territorial integrity, Serbia could or should run Kosovo. Where, you ask, is the Milosevic of Georgia, and what makes you think that Georgian governance would turn out to be so destructive that its de facto control must be qualified by its friends and allies?  Well, you were almost certainly not around fifteen years ago during the fighting and, anyway, one doesn’t necessarily need a Milosevic in order for a militia-army to loot, pillage, rape, and murder its way to ethnic cleansing.  

Or alternatively, if you don’t like Balkan analogies, simply say it is not in the foreign policy interests of the United States to endorse the creation of another India-in-Kashmir situation.  Once you are in it, as India is in Kashmir, then you might have to deal with it, but why you would create it in the first place, merely in order to satisfy a formal legal idea of sovereignty over territory, is quite beyond me.  And the most basic reason it is not in the foreign policy interests of the United States is because it is not in the interests of Georgia, either.  It is not in Georgia’s own interest to create for itself not one, but two, Indias-in-Kashmir.  Yet the nature of Georgian politics - the politics of a democracy, to be precise - is that it cannot help itself.  

Disentangling rolling back Russian imperialism from endorsing Georgian control in fact over uncontrollable territories is only one of two core problems for US policy:

Democracy and participatory ethnic nationalism.  Fourth, therefore, US policy must also disentangle “democracy” from what Georgian democracy currently is - which is best characterized not as democracy, but instead as “participatory ethnic nationalism.”  The US can be proud of what it has done to help Georgia reach the point of free elections, and to take the first steps toward liberal democracy that came about in the Rose Revolution.  But that was only a short few years ago.  Not only does democratic consolidation have a long way to go, much more fundamentally, what we call democracy in Georgia only really works so long as Georgia is pretty much all ethnic Georgian.  It is an ethnic state, and its democratic process is based on that fact.  That works okay for issues on which ethnicity does not matter; but for Georgia to be a democratic state that also included Abkhazia and South Ossetia as genuine political parts, it would require a very different kind of democracy.  It would require an internalized notion of “citizen” which meant something, as it does in liberal democracies such as the United States, different from merely being an ethnic Georgian.  Georgia is a long ways from that.  

US policy thus believes that it is defending Georgian democracy.  Insofar as Georgia is all one general ethnicity, that is fine; citoyen overlaps with ‘ethnic Georgian’.  But the moment that it does not - the moment, in other words, that Georgia contemplates taking actual political control of South Ossetia and Abkhazia and the non-ethnic Georgian peoples who live there - then what looks like democracy instead looks like the heroic solidarity of participatory - deeply participatory - ethnic nationalism.  It is not democracy, not in the liberal sense.

As practical policy, this counsels for the kind of legal ambiguity that I wrote about in an earlier post.  No one should be talking about independence for South Ossetia or Abkhazia; the formalities of territorial integrity matter, here as in many other places in the world.  Russia must be firmly opposed on this political point; no recognition of the territories, serious political pressure against other countries that contemplate doing so, etc.  On the other hand, no one should talk of Georgia in actual fact governing these places, either, least of all the Georgians.  Yet, on a third hand, it is unacceptable in these circumstances for the Russians to exercise de facto political control over them either - particularly by filling them with all the military instruments suitable for an invasion and occupation of Georgia proper.O (One of the commentators to this post correctly points to the difficulty in the strategic geography of the territories in relation to Georgia in total.)

The best solution is the placement of ceasefire monitors and peacekeepers who are genuinely from outside and who would have obligations to all ethnic communities.  I say this reluctantly because outside peacekeepers bring many issues and problems of their own; I am not in any case urging UN peacekeepers, but instead by preference ceasefire monitors and peacekeepers from the OSCE, and noting that plenty of Eastern European NATO countries should have an incentive - fear - to supply them.  That works only so-so, because the Russians are able so completely to dominate,  militarily as well as diplomatically.  But it is certainly a better moral and political policy than proposing, with a straight face, that the Georgians take actual political control over these territories.  Even to propose that cedes both the practical reality and the moral high ground.  Better simply to assert that what’s required is a deliberate legal ambiguity - and then concentrate on getting Russian rollback of its actual military forces.  That has the virtue, at least, of uniting what the practical goal would have to be in any case with what the moral policy should be.  

I realize that this will not sit well with many of my conservative friends, those with whom I am ordinarily aligned - because it will seem like I am undercutting the plainest moral posture: invasion of a sovereign democratic country by a big imperial power.  But the facts of South Ossetia and Abkhazia are not simply a narrative of Russia stirring up trouble in an otherwise untroubled corner of the world.  One can tell me that I am therefore blaming the victim - but I was actually around tallying up the victims a few years ago; I do not have a lot of patience for high minded lectures from people who have not been in bloody ethnic conflict up close, and in this bloody ethnic conflict up close.  Not even, alas, from the Weekly Standard’s Matthew Continetti, someone for whom I have great respect.  The fifteen years that have passed since these conflicts got underway are the blink of an eye.  It is not even act two, after a long intermission.  Only an American, used to thinking in nanoseconds, someone for whom there is no history before he or she arrived, could think this.  It is merely scene two in an early act.  This is not some updated, “They’ve been fighting each other for hundreds of years, it’s in the DNA.”  It is, rather, that this conflict got started fifteen years ago, and although on again and off again, it has never stopped.  Neither its existence nor its persistence are due to Russian imperial expansion alone.

So there are two fundamental policy failures here.  The first is the failure to disentangle opposing Russian imperialism from unwise and frankly not morally defensible Georgian demands for actual political control.  The second is the failure to disentangle the laudable project of Georgian democracy from the overlapping and less laudable project of participatory ethnic nationalism in Georgia.  Taken together, these failures risk tying US policy to a standard of Georgian behavior in war, conflict, control of non-ethnic Georgian territories - to the US asserting a frankly romanticized standard of Georgian goodness and purity - that, as a matter of history, even recent history, they have not managed to meet.  US responses should be tied to Russian ill-doing, which are legion, not unlikely assertions of Georgian virtue.

There is, in my view, no reason why the US response should be any less vigorous on that account.  Indeed, it is likely to be a firmer basis for action in the longer run, because it remains a valid policy, even if Georgian behavior were somehow to undertake a reversion to the historic mean.

(Update: I am going back to clarify and edit some grammar and stuff, and also to add some links.  My thanks to Glenn and Eugene and others for the links, and also for the thoughtfulness of the comments.)

(Second update:  Michael Cecire at Democracy Project has a thoughtful critique of my post, well worth reading.)

The Games have as anticipated been a huge success, both for host Beijing and the athletes. The athletes of the world deserve a quality platform on which to perform their fantastic feats and to showcase all of their hard work. I do very much miss being there on site to share in the palpable energy of all the fans and the athletes. It just does not come across on TV. I believe if one could bottle the atoms in the air during Opening Ceremonies, for example, the bottle would contain love and pure joy. That is what we miss when watching on TV. Being in an Olympic city is just a joyful experience. I gather that as usual the Beijing businesses thought the Games would be a bonanza but this is always an exaggerated view of the potential and that bubble seems to have burst with hotels at low occupancy and retailers not selling all their excess goods. The venues seem to have also expected higher occupancy – perhaps the difficulty in getting visas (hotel reservations had to be demonstrated before a visa could be obtained) contributed to all of this, but it is a classic scenario in an Olympic host city.

The controversies have been few and, even more surprising after Jacques Rogge predicted 40 positive doping tests, so far I have only seen 4 reported. Maybe that rhetoric worked its magic or all those pre-Games withdrawals took care of the anticipated positives. We can expect these Games to be the cleanest ever.

Reading the press during past Games, it sounded like the CAS ad hoc Division’s work revolved mainly around doping cases, but that is not the case. The appeals of positive doping results tend to come after the Games are over. The majority of the cases appealed to the Division are ‘eligibility’ cases which are those appeals filed by athletes seeking to participate after some perceived error in the selection process. This is where the Division is at its most effective because of the ability to hear a case and resolve it quickly, before the competition. I actually heard an eligibility case before the Games as an arbitrator for the American Arbitration Association, involving the women’s 10 meter platform synchro U.S. Olympic team.

To date, the CAS ad hoc Division has received 8 appeals, with 6 of them being eligibility cases and 2 involving appeals of decisions made on the ‘field of play’. The Division will not act as ‘instant replay’ though it will review any legal errors which may have been made in the context of a competition (i.e. on the ‘field of play’). As an example, Ara Abrahamian, the Swedish wrestler who rejected his medal because of a claimed judging error, appealed that judging to the Division, but did not appeal the IOC’s withdrawal of his medal. Other than that case, my colleagues on the Division so far have not been asked to hear a highly reported case yet these Games, but there is still time! The gymnastics age controversy seems to be brewing but the Division will close on Sunday, so there is very little time left. Under the Olympic Charter, the Division would have jurisdiction over that issue if it is appealed on the occasion of the Olympic Games. I do wonder what possible reasons there could be for not filing an appeal.

Since I have been getting lots of questions on this, here is the detail on the recourse for the Chinese Gymnastics dispute: An appeal will have jurisdiction with CAS if it is based on some sort of legal non-compliance with an International Federation’s (such as the International Gymnastics Federation) rules and the IF’s rules provide for appeal to the CAS. I am not sure about the Gymnastics IF’s rules, but normally, the IF’s rules provide for review of its decisions by its own judicial committee, with the exception of anti-doping doping rule violations (i.e. disciplinary decisions) which are subject to appeal to CAS. Each International Federation establishes the eligibility criteria for their sport. Any affected party (a National Olympic Committee on behalf of its athletes) could appeal to the ad hoc Division if there was a dispute about an IF decision which arises on the occasion of the Olympic Games. The CAS rules for the Olympic Games provide that any dispute that arises “on the occasion of the Olympic Games” can be submitted to the division, thus there would be jurisdiction if this is not a new dispute. In any event, an appeal could be lodged by the applicable National Olympic Committee and the ad hoc Division would determine its jurisdiction based on the facts presented. The IOC may make a decision to overturn the IF’s apparent decision that the Chinese gymnasts’ passports are accurate evidence of their ages. That IOC decision would then be subject to appeal to CAS’ ad hoc division by any affected party (in this case, the Chinese NOC).

So, another Games has uplifted us and I am grateful for that.

I have been writing in my own draft work this summer about the UN, and most recently about ways in which the institution(s) is founded upon a long list of antinomies and ambiguities that allow various participants to take things how they will.  It has caused me to think about the virtues and vices of ambiguity in international law and diplomacy more broadly.  

At the UN, in the grand conceptualizing of the UN, a core ambiguity lies in the term and usage of “multilateral.”  For some, multilateral means no more and no less the coming together - or not - of sovereigns around particular issues, without any ultimate compromise into the future of their sovereignty notwithstanding their cooperation on a particular issue in the present.  For others, however, multilateral means this kind of cooperation in the present, but with an expectation, a forward looking expectation, that such cooperation must at some point mean, or solidify within expected behavior, or imply a relinquishment of sovereignty in favor of some other paradigm, most typically global governance. Each can plausibly call itself “multilateral,” because the difference is largely one of expectation and orientation toward the future.  And it is noteworthy how much can be done on particular issues in the present even when different parties have different understandings of that core term.  So long as the ‘present’ is a forever concept and the glorious future of ‘ceded sovereignty’ merely a permanently receding horizon, then the ambiguity is never forced to clarity. 

The diplomatic and legal formulation of the status of Taiwan is another example.  It works, in the sense of preserving the status quo but, more importantly, the peace of the straits and the democratic political institutions of Taiwan, so long as no one decides to act on one reading of the ambiguity so as to force the other off the table.

The problem is, many of these ambiguities are eventually forced by some party or other.  Relative calculations of risk and benefit shift.  One party gains the upper hand and no longer has any reason not to force things.  In the case of the UN, however, the ambiguity might well be permanent, because the institution is largely - not completely, but largely - epiphenomenal, and so there are fewer reasons than one might think for particular players to force the conceptual question of multilateralism.  It would require the expenditure of real resources on something that is mostly, not completely, but mostly, to my mind at least, a matter of theatre.  

But it is in part the accumulation of antinomies and ambiguities that renders the UN frozen.  It is like an automaton in a cul de sac: the UN marches, marches on, but in fact as it marches on, it marches in place.  In what sense is it multilateral?  I would say this, you would say that - actually, neither of us says anything, in order not to upset the marching.  

I am also struck, in writing on the UN, how surprisingly little interest my public international law colleagues around the US, but also the world, take in it these days; I myself take it anecdotally as evidence of the UN’s having achieved a certain equilibrium-in-stasis.  We at Opinio Juris, for example, seem to spend far more of our time discussing, so far as I can tell, international criminal tribunals, the ICC, the ICC prosecutor, all these elements of an international criminal justice system than the UN proper.  In an abstract sense, of course, international criminal justice can be seen as an appendage of the UN system, sure, but in practical fact international criminal justice has an attractively dynamic element to it that is precisely because it is some distance from the paralytic UN system.  I think we in public international law exaggerate greatly the importance of that criminal justice system - but we do it because most of us - not me, certainly, but most of us - despair of the paralysis of the UN generally.  The ideals and institutions of international criminal justice take on the weight of the hopes and dreams that were earlier invested in the UN; they are, to my mind, even less capable of bearing them, but perhaps that is merely my own general distaste for global governance speaking and perhaps I am wrong about that.  Still, as a Weberian, I do find remarkable the idea that one can create a judicial system in the absence of a political system, and a political system of sufficient density to sustain a judicial system in the absence of a society in which a politics is embedded.  

But the ambiguity surrounding the UN as exercise in sovereign multilateralism versus multilateralism looking forward to global governance might be called and forced, perhaps if the direction toward a multipolar world continues.  The world in which China and Russia regionally challenge the US and NATO and the US’s allies more broadly is one in which multilateralism is about sovereigns; the multilateralism of “looking forward” to the UN as institution of federal global governance looks much less relevant.  Kofi Annan spoke in his closing days, and beyond, of the Security Council as the “management committee of our fledgling collective security system,” and meant by that to say that the Council could and would become something more than merely the talking shop of the Great Powers.  But in a competitive multipolar world, the Security Council looks to be, more than ever, the talking shop of the Great Powers - at its best.

The multilateralism of the world of tomorrow, the world of global governance of tomorrow - that all looks to be an epiphenomenon that supervenes upon the fact of a loose hegemon that couldn’t rouse itself to care - not really - about that kind of talk among intellectuals and academics and international bureaucrats.  Multilateralism of eventually-ceded-soveriegnty doesn’t necessarily survive in an international world in which powers such as Russia and China (and not they alone) hanker after visions of National Greatness, as Robert Kagan recently put it, and projections of power in their (expanding) neighborhoods.  They do not necessarily seek to bother the United States as such - but they do not intend to be bothered by it, either.  History recrudesces, geopolitical dangers to peace and security mount on all sides, and the Parliament of Man returns to what it always was - a form of platonism.

In order to be able to deny the invasion of Russian troops, it was first stated that some villages on the Georgian frontier had revolted, embittered by the tyranny of the, Georgians…. Simultaneously, Abkhazia had risen in the extreme northwest, close to the Russian border.

It is a remarkable fact that the rebellions broke out precisely in those places, Armenia, Azerbaijan, and Abkhazia, where large and constantly increasing masses of Russian troops had been quartered since November.

The inhabitants of some Armenian border villages are supposed to have insisted on advancing towards Tiflis (Tbilisi). The Russian Government stated it had endeavored, out of love of peace and benevolence, to help the threatened Georgian regime, and offered its mediation between the Georgians and the Armenians. It could not help it if Georgia contemptuously rejected this mediation.

It was written in 1921.

     Franck Fife/AFP via MSNBC   

As we’ve learned from our expert guest-bloggers, there are disputes arising out of the Olympics, and then there are DISPUTES.   The reported International Olympic Committee investigation into the age of Chinese gymnast and gold medalist He Kexin （何可欣） qualifies as the type of DISPUTE that could really get ugly. Why? Because a big part of the investigation will have to deal with alleged Chinese government involvement in covering up the ages of Chinese gymnasts.  The investigation appears to have been spurred by a NY-based blogger whose fascinatingly simple investigation can be found here.  

Politically, I just can’t imagine the IOC will want to embarrass China like this.  And if they do, I sense an ugly nationalist backlash in China.  This is pretty much the ultimate test of the IOC’s commitment to enforcing its rules. And perhaps we can look forward to a nice long arbitration battle afterwards?

Two unlikely allies met for breakfast last month in New York to discuss a possible collaboration: Mia Farrow, actress and passionate activist for Darfur refugees, and Erik Prince, founder and CEO of the government contractor, Blackwater Worldwide.

Farrow told ABC News that Blackwater, despite its controversial history and allegations of murdering civilians in Iraq, might be able to help the “hopelessly under-equipped” African Union forces deployed in Darfur with logistics and training.

“Blackwater has a much better idea of what an effective peace-keeping mission would look like than western governments,” Farrow told ABC News from a refugee camp in near the Darfur border.

You mean, like this?

Or this?  (Warning: graphic image.)

I am sure many of you have seen or read Samantha Power’s biography of Vieira de Mello and his work, Chasing the Flame.  You might not be aware, however, that a campaign on humanitarianism and US foreign policy has also been set up on the web, at www.chasingtheflame.org - it has a number of commentators on issues related to humanitarianism and international affairs.  (Update:  Thanks for Annie Vieira de Mello’s comment below; here is the foundation that she mentions, the Sergio Vieira de Mello Foundation.) 

In addition, you might have seen Power’s New York Times op-ed, “For Terrorists, a War on Aid Groups,” August 19, 2008.  (I’ve linked to chasingtheflame.org; the actual op-ed is behind the NYT subscriber wall, but maybe the full text will be available at the website one of these days, and in any case the comments are interesting.)

I lost a friend in the 2003 attack, Arthur Helton, who headed the migration and refugee program at the Council on Foreign Relations and who was in the waiting room at the headquarters for a meeting that day on Iraqi refugees and internally displaced.  Arthur was an old friend dating back to his days at the then-Lawyers Committee for Human Rights and, later, when his office was down the hall from mine at the Open Society Institute.  Arthur was a tireless advocate and a person of goodness and great integrity, and I want to remember him this day, too.  

I’ve written on humanitarianism and the Baghdad bombing in the past, including this piece from the 2004 Harvard Human Rights Journal, and one of these days I’ll comment on questions of humanitarianism, aid, relief, and institution building.  Some of what I have to say about all that is, well, contentious.  I don’t entirely share Chasing the Flame’s views on humanitarianism, neutrality, and the related topics, but that’s for another day.

But today - it’s a good time to remember those who were lost five years ago and honor their memories.  I also want to recall here, and honor those who died in the October 2003 attack on the ICRC in Baghdad.  My thoughts and prayers are with their families and those who loved them.

My own view, FWIW, is that I have no problem with laptop use as such; I am no longer capable of handwriting even an entire class worth of notes.  I have always taken verbatim notes if I have taken notes at all, and then reworked them later.  My problem is with the internet and the endless distractions.  In my experience, internet access has done more to lower attention and thought in the classroom than anything I am aware of - having a TV, blackberry, IM machine, email device, and websurfer is simply an impossible distraction.  I was at a meeting a year ago with a group of Very High Powered People, including a Senior Federal Judge who shall remain nameless; everyone was fiddling with their blackberries until the chair finally asked everyone to stop and put them away; everyone did and the level of intellectual engagement went up 200%, as everyone acknowledged, and Said Senior Federal Judge said to me in passing that it was remarkable to him that he, at his age, would have developed a genuine crackberry addiction and craving.  I can’t resist it if available and I bet you can’t, either, and I know my students can’t and don’t.  It is the addictive, irresistible nature of the medium that makes it not an answer to say, hey, just tell everyone not to go online - the temptation is overwhelming, and having to “police” it is very bad to the classroom environment I am trying to create, successfully or not.

But my students don’t especially see any reason why they should be off the internet in class, either, and that’s true even if they think it is a distraction and time-wasting.  Many students, when I ask about this subject, take the view that the classroom is simply a place in which there is a bunch of ‘parallel bilateral’ relationships between teacher and student, not a multilateral (see, I knew I would work something international in here!) set of relationships in the class.  

There is actually a point about international law students, if not international law.  Many of my students are foreign LLM students - my school has a very large international LLM program, and my IBT class, for example, will typically run half to two thirds foreign students.  One of the things they tell me, year after year, that they value about American higher education, as compared to that which they received elsewhere, in part because the classroom is not simply a place where a professor lectures in completely disconnected fashion to a bunch of disconnected students, but that there is an effort - successful or not - to try and create a “community” of learners together.  Many of them find this both exciting and scary, especially if their language skills are also at issue.  Many of them find the willingness of students to put questions and views to the professor to be a remarkable thing all by itself.  (There are many complicated reasons for why this is - much of it related to the costs of higher education; in places where university budgets are more constrained because they are non-tuition or low tuition state universities that can’t afford the level of teaching resources American universities provide, for example, because students pay for it; whether American law schools provide as much value added as one might have thought the (high) tuition paid suggests is another question, too.  I also think this is changing many places in the world.)  

My American students, by contrast, on the whole seem to take the idea of a ‘community of learners’ in a classroom to be more of the eye-rolling, culture of therapy, ‘edu’-ology they were raised with (I quote one former student) and think, particularly, that what other students have to say is almost always a waste of time for the rest of the students listening.  

I find myself thinking both things at once, actually.  On the one hand, I take seriously the idea of the classroom as a form of community - at least a form of multilateralism rather than “parallel bilateralism.”  I think my American students so thoroughly take for granted the efforts that American higher education takes in that regard, imperfect as it is, they would be in shock to see what it is that students elsewhere in the world take as the norm.  On the other hand, I suspect my American students are also right in doubting that teacher student interactions in the classroom, especially above the seminar level, are all that worthwhile for the class as a whole.  I have my own doubts that any student has ever learned anything from what any other student said in a large law school classroom (in general, I share entirely Professor Bainbridge’s views on law school teaching).  I receive a remarkably large number of written student evaluation comments that say simply, “Please do not let students raise their hands and say anything..”

But I do know that I do not accept the quite common remark of my American students that they should have no obligation even to show up to class, ABA aside - they are simply consumers of an expensive consumer product called legal education, and I am sort of the highly paid barista who provides it - and if they want to spend their tuition paid time surfing the internet, that’s their problem, not mine, and definitely none of my business, if not an affirmative violation of their human rights.  I myself think not.  I also do not accept what a surprising number of professors have said to me when I have raised the internet distraction issue - cutting past the politeness to the chase, if you were a good enough teacher, you would be able to overcome all distractions, including the internet.  To which I have usually responded by providing the Bikini Calculus Video (I’ll dig out a link), in which two young women in bikinis teach a calculus lesson while dancing.  The math is all there - they go through it, complete with powerpoint, and I’m sure that with sufficient willpower, one could learn it despite the distraction and I’m equally sure that no one ever has.  

(Actually, I think that university administrators are so committed to the coolness of having provided - and paid for - wireless laptop connections everywhere in the school, they can’t imagine that anyone would want to roll it back.  Instead of presenting no-laptops as a luddite step backwards, I think the only way to present it to deans is that the really, really, really up to the minute technology will be the ability to turn off internet access in individual classrooms.  In the law school world, it will depend on some top five school first adopters to give it cachet with the rest.)

But now a question.  When someone at my school sent around one to the faculty of the circulating articles on laptop bans, one of the school’s senior administrators responded with a note saying that banning laptops in classes might violate the disability laws and please consult first.  When someone said, well, if the student has a disability, then sure, the laptop is okay, the answer was, not necessarily, because the disability laws - at least at my school - are read to prohibit the instructor from knowing who has a disability, and the instructor would know if only disabled students were able to use them.  I know zero or less about disability law and simply do whatever the dean of students office tells me, but I was curious.  Does anyone know anything about this subject?

As I’ve said in earlier posts on this subject (and here and here and here), the vast, vast majority of the research into battlefield robots has nothing to do with autonomous weapons firing platforms - which is, of course, where the biggest ethical and legal issues arise - but with surveillance and independent target scanning and identification.  But there are some other possible roles for robotics on the battlefield, including things like extraction of the wounded or delivery of supplies.  A lot of the interest is less about autonomous battlefield robots as such than the multiple uses of unmanned vehicles on the battlefield.  So, check out this article from (where else?) Popular Mechanics, which describes the recent UK MoD competition for mobile battlefield robot platforms (HT Instapundit):

The United Kingdom’s Ministry of Defence (MoD) has held its own robotics competition, the Grand Challenge, that cut to the chase with unmanned vehicles stalking human targets through the Copehill Down training village in southwestern England. The finals took place this weekend, and the MoD announced the winners yesterday. 

A key difference between the Grand Challenge and DARPA’s Challenges is hardware diversity. The robots who slogged through the training village, picking out an array of potential targets—including uniformed troops, armed snipers perched in windows and roadside bombs—ranged from familiar, sensor-studded unmanned ground vehicles (UGVs) to swarms of unmanned aerial vehicles (UAVs). Some teams even used a combination of ground and air bots, since UAVs might be useful for spotting a tactical (a pickup with a mounted weapon) while UGVs are better at detecting improvised bombs. Less “operator intervention” required to navigate the village, find warm bodies and differentiate between civilians and legitimate military targets earned more points. 

This UK competition is being contrasted, in the grafs above, to the US DARPA competition, which was more focused on unmanned vehicles.

The immediate battlefield robotics interest in the West is on surveillance and unmanned vehicles to take over roles now played by humans in logistics and such, not autonomous firing platforms.  Indeed, one great policy risk in the development of these platforms is that a military not so concerned about ethical and legal requirements might deploy autonomous firing robots several generations long before NATO might think they were acceptable for use - if NATO countries ever concluded that they were.  The battlefield environment suddenly has many more “shooters” on it, possibly firing at NATO troops, and not especially concerned about collateral damage that might well have prevented NATO armies from deploying the robots in that current technological generation.  I suspect, in other words, that robots with autonomous firing capability will come to the battlefield sooner rather than later - but not necessarily in a form acceptable to the US and NATO on legal and ethical grounds, and not deployed by the US and NATO, either.  

Here, by the way, is a useful link sheet from a class on Robots and Society at Georgia Tech.

The Language Trainers Group has a great new on-line game: trying to guess what country 16 people with different accents are from.  It’s called, not surprisingly, Can You Guess Where My Accent Is From? I scored a 28 — a full 10 points higher than Blake Hounsell, who tipped me off to the game at FP Blog.

And yes, I could tell the difference between a Brit, a Kiwi, an Aussie, and a South African.  Seems I’ve learned something in my two years in the southern hemisphere…

Some of her statements are rather strongly worded but, of course, diplomatic announcements are one thing and actual actions are another. So the questions remain:  Is this NATO-Georgia commission an intermediate step towards a further expansion of NATO’s role in the region (thus possibly further angering Russia) or is it a signal to Russia (with a little face-saving on NATO’s part) that NATO has heard Russia loud and clear and it is putting aside plans of expansion into the Caucasus? Time will tell. For now, here’s Rice’s statement and the Q&A (with some highlighting on my part of passages that I think are especially worthy of note):

SECRETARY RICE:  Good afternoon.  I have just finished attending a meeting of the North Atlantic Council at the level of Foreign Ministers.  That meeting has produced a declaration, which I am certain you now have copies of, which is a comprehensive response to the crisis in Georgia.  This was an extraordinary meeting of the North Atlantic Council.  And that, in itself, is a clear indication of NATO’s interest in this crisis and NATO’s concern that this crisis has a real impact on peace and stability in this region and therefore is crucial to the alliance. 

There are several elements to the declaration.  But perhaps most important, I think the declaration clearly shows that NATO intends to support the territorial integrity, independence and sovereignty of Georgia, and to support its democratically elected government, its democracy, and to deny Russia the strategic objective of undermining that democracy, of making Georgia weaker or of threatening Georgia’s territorial integrity.  In that regard, a number of steps will be taken to support Georgia, including the creation, as the Secretary General has just said, of a NATO-Georgia Commission to oversee cooperation with Georgia on a wide range of matters and to oversee the program to achieve the goals of Bucharest.  The Council reaffirmed the Bucharest Declaration of our heads of state, as well as developing this program of specific steps that we will take. 

Secondly, there was very strong language in the declaration and very strong language around the table of the need for Russia to honor the ceasefire commitment that its president has undertaken.  It is time for the Russian President to keep his word to withdraw Russian forces from Georgia, back to the August 6/7 status quo ante and to return, in fact, all forces that were not in South Ossetia at the time of that – of the outbreak of that conflict.  That means that Russian peacekeepers “who were there” are one thing, but those who reinforced in some way into the zone of conflict should also return to the status quo ante. 

Finally, this document is a very clear statement that this alliance, NATO, having come so far after the end of the Cold War and the collapse of the Soviet Union in achieving a Europe that is whole, free and at peace, is not going to permit a new line to be drawn in Europe, a line between those who were fortunate enough to make it into the transatlantic structures and those who still aspire to those transatlantic structures.  And thus, as I have said, there was the reaffirmation of Bucharest that the circumstances for Georgia and Ukraine to become members of MAP will be taken up by the ministers in December, as was envisioned in Bucharest, but that there will absolutely be no new line.  NATO does not accept that there is a new line, and we are acting as if there is no new line.  That is why both the establishment of the NATO-Georgia Commission and the meeting that will take place next week of the NATO-Ukraine Commission, as well as the visit of NATO permanent representatives to Georgia are important steps that demonstrate that principle. 

I want to underscore that NATO has an open-door policy to all European democracies that qualify for its membership.  This is not a matter of forcing countries into one alliance or another.  It is simply a matter of giving them the choice that free peoples deserve.  And NATO stays true to that principle and stays true to the Bucharest Declaration that declared that NATO – that Georgia and Ukraine, having declared that they wish to pursue a transatlantic future, will become members of NATO. 

QUESTION: Madame Secretary, is the NATO-Georgia Commission a substitute for what the Georgians have really been asking for most passionately, which is some kind of military resupply, reinforcement?

SECRETARY RICE: The NATO-Georgia Commission is a political body that will oversee the whole range of cooperative initiatives and possibilities with Georgia.  I think you also heard the Secretary General say that there will be a team to assess Georgia’s military situation and its needs.  But the NATO-Georgia Commission is a new body that establishes on the same terms that we have a NATO-Ukraine Commission, a body to oversee the full range of cooperative initiatives and possible future cooperative initiatives with – with Georgia.

QUESTION: Madame Secretary, what is the significance today of the decision by OSCE to send 100 military monitors?  How long – how long is that good for?  And if the plan is to have an international peacekeeping operation in place at some point, what leads one to believe that the Russians would now be willing to do that when they opposed it previously?  Do you have any indications of that?

SECRETARY RICE: Well, on the OSCE monitors – we hope to get in very quickly because in conjunction also with Point Five of the ceasefire arrangement, there need to be international monitors so that these so-called special security arrangements do not need to be in place for very long.  They’re heavily prescribed already by the clarifications that President Sarkozy provided to President Saakashvili.  But there is an expectation of an international monitoring force, that is the OSCE force.  We are working very closely with Foreign Minister Stubb to make certain that those monitors will have all of the equipment that they need and the transport that they need to get in.  And I’m very pleased that there appears to be agreement that those monitors should be deployed, and deployed quickly.

There will need an international peacekeeping force as a part of a broader resolution of the conflicts in both South Ossetia and Abkhazia, because there will have to be a peacekeeping force that is neutral.  I think it’s quite clear that Russia has become a party to this conflict.

MODERATOR: We have the final question from Sylvie Lanteaume, AFP.

QUESTION:  Madame Secretary, the Europeans seem obviously reluctant to isolate Russia as you would like.  They don’t want to treat the Russia of today as the Germany of (inaudible).  Do you think – do you think these concerns are legitimate?  Do you understand them?

SECRETARY RICE: Well, Sylvie, the United States doesn’t want to isolate Russia.  It’s the United States that has a strategic framework for cooperation with Russia that has everything in it from economic cooperation to political cooperation, cultural cooperation, indeed even offers of defense cooperation.  So the United States doesn’t seek to isolate Russia.  The behavior of Russia in this most recent crisis is isolating Russia from the principles of cooperation among nations of the communities of states when you start invading small neighbors, bombing civilian infrastructure, going into villages and wreaked havoc and wanton destruction of this infrastructure.  That’s what isolates Russia.

And so it is not an act of the United States or Europe or anybody else to isolate Russia; it’s what Russia is doing.  And I would just call your attention to the language that there can be no business as usual with Russia while this kind of activity goes on.  And so I want to be very clear: the United States sought precisely what we got in this statement, which is, most importantly, support for Germany’s – for Georgia’s democracy; secondly, a very strong message that the Russian President ought to keep his word; and third, a very clear statement of principle from this alliance that a new line in Europe where Russia somehow asserts that there are those who cannot opt for a transatlantic future is unacceptable.

Thank you.

UPDATE: The Times of London reports the following:

Nato united in the face of Russia’s failure to withdraw from Georgia today, freezing regular contacts with Moscow and declaring that there could be “no business as usual under present circumstances”…

David Miliband, the [UK] Foreign Secretary, who flew off to meet Mikhail Saakashvili, Georgia’s President, in Tbilisi after the meeting, emphasised that he was talking “politically” when he pronounced that “Nato will defend the territorial integrity of Georgia”. He said he was referring to the defence of international law.

The Nato statement triggered a furious response from Moscow, leaving relations between Russia and the West at their lowest point in years.

Sergei Lavrov, Russia’s Foreign Minister, accused Nato of trying to “save a criminal regime in Tbilisi” and “taking a path to the rearmament of the current leaders in Georgia”. He claimed Russian troops could be withdrawn within three or four days.

Dmitry Rogozin, the Russian Ambassador to Nato, also dismissed the alliance’s statement. “On the whole, all of these threats that have been raining down on Russia turned out to be empty words,” he said.

Nato’s “political” support for Georgia did not go down that well with Georgians either. When Jaap de Hoop Scheffer, Nato Secretary-General, announced at the end of the meeting that the alliance was to set up a Nato/Georgia Commission to facilitate intensive discussions with Tbilisi, a Georgian journalist asked : “With Russian troops deep inside Georgia, murdering and raping its people, what does this new Nato/Georgia Commission do for us?”

The Nato chief said the commission was a political structure which would help towards Georgia’s aspirations to become a full member of the alliance at some stage in the future.

Mr Miliband said the establishment of the commission was intended to send another strong signal to Moscow that Georgia would one day join the alliance, as promised at the Nato summit in Bucharest in April.

This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II.  While the government’s submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans.  Even more disturbingly, the archival record demonstrates that at the time the Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.

The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the “Oriental” as an invading horde may have overpowered the lawyers’ evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision - which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures - deserves to be installed in the Supreme Court’s Hall of Shame, alongside Korematsu, Dred Scott, and the Court’s other biggest mistakes.

If you read the article — and I hope you will — I think you’ll agree with Eric’s conclusion.  The article is available on SSRN here.

The present posting is a brief summary of those pre-Olympic cases. In substance they show that the main issues are Selection and Eligibility, whereby the issue of nationality seems to play a dominant role:

Schuettler v. ITF: Mr. Shuettler was proposed by the German National Olympic Committee as one of the 4 players (See ITF Rules, Section II) to join the German tennis team at the Olympics. However in the overall international ranking, two other players were ranked above him, so that the International Tennis Federation (ITF) contended his participation. Thus “the real issue [was] whether the ITF Rules oblige NOCs to nominate players strictly in accordance with the [competition rankings of the ITF]“. The CAS found that this was not the case, based in summary on the fact that NOCs (usually in agreement with the national federations) decide which athletes will take part in the Olympic Games and that this dichotomy “represents the dual sovereignties of national and international bodies”. In conclusion, Mr. Schuettler was allowed to attend the Olympic Games.

Two short comments: first, if the ITF wishes to make sure that only the best players (according to its ranking) take part to the Olympics, then it must adopt qualification criteria that (indirectly) deprive the NOCs of their right to provide for subjective selection criteria, for instance “A NOC shall select its four (4) highest ranked eligible players based on the computer ranking.” Second, objective and subjective criteria have both advantages and drawbacks and it is almost impossible to find the right balance between clarity and fairness. What is sure from previous CAS case law is that if the selection criteria entail a subjective assessment by the selection body, the CAS will limit its review to whether (i) the selection body has exceeded the limit of that discretion and (ii) whether it has been exercised in a reasonable, fair and non-discriminatory manner. This might explain why the two players ranked above Mr. Schuettler decided not to challenge the NOC’s decision.

Azerbaijan Field Hockey Federation (AFHF): At first sight, this case concerns a purely objective qualification criterion – i.e. the outcome of a qualifying event (here: a game between Spain and Azerbaijan, which ended 3:2 for Spain). The AFHF tried, no less than 3 (!) times, to be reinstated on the ground that two Spanish players tested positive during said game and that the International Hockey Federation (IHF) anti-doping rules provided that “if more than one team member […] is found to have committed an Anti-Doping Rule violation during the Event, the team may be subject to Disqualification or other disciplinary action.” As correctly pointed out by the Panel, the disqualification of the Spanish Team “is still a discretionary matter to be determined by the Disciplinary Commission”, so that the “Panel would have to establish an improper exercise by the Disciplinary Commission of its discretionary powers under Article 11 of the Anti-Doping Policy”.

As a matter of fact, the IHF Disciplinary Commission acquitted one Spanish athlete while the other, though she was held to have violated anti doping regulations, was not found to have committed a fault or negligence and was therefore not sanctioned. Insofar as the AFHF challenged the IHF Disciplinary Commission, the Panel found that it did not have standing to appeal. Indeed, just as the World Anti-Doping Code, the IHF Doping regulations do not include the other affected athletes/teams in the list of the persons who are allowed to appeal doping decisions in front of CAS. This rule is well known and relies on an understandable rationale: namely to avoid endless litigation as to who shall be considered (sufficiently) affected to have standing to appeal. For this reason the Russian cyclist Ekimov was prevented from requesting the disqualification of Tyler Hamilton (whose disciplinary proceedings were closed due to the “B” blood sample being inconclusive) during the Athens cycling event. Despite the fact that Hamilton ranked first and Ekimov second and that the dispute was about the gold medal, the CAS decided that Ekimov had no standing to appeal. In such extreme cases, one cannot exclude that the “other” athlete would resort to the state court claiming that arbitration does not afford him true access to justice and thereby jeopardize the very reason for the establishment of the Ad Hoc Division.

Gutu v. IOC: In this rather bizarre case, Mr. Gutu was to swim for the Moldovan National team though he – for reasons, even he submitted may be “illegal” – represented Romania in the 2007 World Championships. As pointed out earlier by Mr. Spiro, Rule 42 of the Olympic Charter requires a three year “waiting period” before an athlete may represent a country after having represented another. The international swimming federation (FINA) further requires a year’s residence in the country to be represented. In this case, both the Romanian and Moldovan National Committee’s waived the waiting period for Mr. Gutu, but no response could be obtained from FINA. However, given that the court was not able to conclusively establish Mr. Gutu’s citizenship (no supporting documentation, e.g. passport, identity card or the like, was submitted to the court) or that he had actually qualified for the Beijing Olympics (the Moldovan’s only “baldly stated, without reference to dates, times or specific events, that [Mr. Gutu had] complied with the Beijing Olympic standard and won the championship of Moldova in 2008″) the Panel dismissed the application.

Simms v. FINA: This case also concerns a dual citizen (US/Philippines) swimmer, who after application to the Philippine Amateur Swimming Association (PASA) in 2007 was offered a place on the Philippine Olympic Team. PASA and the NOC in turn filed for a change of nationality with FINA, who denied the request, on 28 November 2007 (as Ms. Simms had not lived in the Philippines over the last year as required by FINA GR 2.6). However, on 4 February 2008 FINA sent a letter stating that the swimmers mentioned (including Ms. Simms) therein could participate at the Olympic Games, subject to approval by the NOC and BOCOG. In addition, in April 2008 Ms. Simms represented the Philippines in 6 events at the FINA World Championships. On 21 April 2008, following the end of the World Championships, FINA reiterated their denial of her change of nationality based on its General Rules in a decision dated 29 July 2008 from FINA’s Executive Director. Ms. Simms requested a stay of this decision before the CAS ad hoc division. The Panel found that FINA was “estopped” to hear the case as it failed to mention the “residence” clause in its letter of 4 February 2008 and also because it allowed Ms. Simms to represent the Philippines during the World Championships.

One could wonder whether the estoppels argument should not also apply to the “Philippine side” on the ground that they did not appeal the previous decision by FINA that clearly rejected the request for change of nationality. The real problem with this decision is that Ms. Simms received a much more favorable treatment than other swimmers who tried to challenge FINA’s refusal to endorse nationality change according to the rules. Although legally questionable, the Panel decision must be welcomed as it clearly indicates to FINA (and all other governing bodies) that if they want to enact strict rules that prevent athletes from participating in the Games they have to start by being strict with themselves.

Personally, I am more disappointed with the general obiter dictum according to which the decision “is not to be taken to disregard FINA Rule GR 2.6 and FINA’s interpretation of that rule, with which the Panel respectfully agrees”. This is however a much more complicated issue upon which other bloggers will surely wish to comment. To initiate the debate I would just like to put forward the following question: how can one explain that Ms. Simms who has always been a Philippine national (mother 100% Filipina and father 75% Filipino) should be prevented to compete for the Philippines just because she once represented the USA at the “1st Junior Pan Pacific Swimming Championships” and the former WNBA star Becky Hammon can play for Russia just because Russian authorities agreed to a “tailor made” naturalization process?