Recent Posts

I Sing of MAARS and a Robot

by Chris Borgen

Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:

Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.

One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”

However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:

Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.

However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:

Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…

It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.

But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.

.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would  not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?

This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.

For another recent post on robots and regulations, see my post from earlier this summer.

Senior Teaching Fellow Positions at SOAS

by Kevin Jon Heller

We are looking for two Senior Teaching Fellows. Here is the advertisement:

Salary: £34,336 – £40,448 per annum pro rata inclusive of London Allowance

Fixed term, part time for two years from September 2016

SOAS, University of London is the world’s leading institution for the study of Asia, Africa and the Near and Middle East, offering programmes in arts, humanities, languages, law and social sciences. Inaugurated in June 1916, SOAS has had an international reach since the arrival of its first students in February 1917 and is celebrating its Centenary in this year. As an institution we combine language scholarship, disciplinary expertise and regional focus, and have the largest concentration in Europe of academic staff concerned with these specialisms.

The School of Law invites applications for two year fixed term Senior Teaching Fellow positions available from September 2016.  The vacancies are designed on a 0.5 FTE part-time teaching basis to support postdoctoral individuals who might be seeking to develop an academic career in conjunction with their personal research interests.

You will have academic expertise in an area of the law that is consistent with the SOAS mandate as a specialist institution in the study of Asia, Africa and the Near and Middle East. Ideally, you will also have a PhD in Law.  You will be expected to teach to a high standard undergraduate and postgraduate students in two or more of the following areas of law: Contracts, Property, EU, Human Rights Law and Law and Society in Asia and Africa. You will be expected to engage in teaching-related administration, supervision of Masters dissertations, pastoral care, and administration.

Prospective candidates seeking further information about SOAS and the Department may contact the Head of the School of Law, Professor Carol Tan (ct9 [at] soas [dot] ac [dot] uk).

These are excellent positions. Applications are due August 10. Full information here.

Emerging Voices: Promoting Threat? Assessing the Role of the European Union as an Enforcer of International Law in the Ukrainian Crisis

by Alexandra Hofer

[Alexandra Hofer is a Doctoral Researcher at Ghent University, GRILI member. The topic addressed in this post is based on a paper entitled Promoting Threat: The Effect of European Union Restrictive Measures on the Development of International Law’s Enforcement, a Sociological Approach. All websites were last accessed on 5 July 2016.]

The starting point of this post is related to the renewal of the EU’s economic and sectorial sanctions against the Russian Federation for its destabilizing policies in Ukraine. These restrictive measures were first adopted in July 2014 in reaction to the events in east Ukraine. The measures restrict financial exchanges with Russia and exports of technology needed for oil exploitation and production; they impose an embargo on arms, dual-use goods and technology. They aim at pressuring Russia into using its influence on the Ukrainian separatists and to prevent the transfer of heavy arms across the Ukrainian border. Their objective is to impose costs on Russia for its illegal and destabilizing conduct in Ukraine. (For example, see this.)

Since 2014, renewals have taken place despite signs of sanctions fatigue as certain EU Member States have suggested reconsidering the sanctions against Russia, arguing that the restrictive measures have been ineffective against the Kremlin. (Examples include Greece, Italy, Cyprus and Hungary; French President Hollande). At present, the lifting of the European measures is dependent upon Russia’s implementation of its obligations under the Minsk Agreements and its contribution to the peaceful settlement of the dispute with Ukraine.

This post considers whether such restrictive measures are an effective means for the EU to resolve the Ukrainian crisis and enforce international law. In order for this to be the case, the measures need to be successful in convincing (or pressuring) Russia to change its policy in east Ukraine and cease its wrongful act. Although the effectiveness of sanctions is generally an issue addressed by political scientists, it is an equally important question for international lawyers who are interested in ensuring compliance with international legal obligations. Can sanctions such as those imposed by the EU change Russia’s behaviour? We are therefore interested in these measures’ coercive effect (see Francesco Giumelli ‘How EU sanctions work. A new narrative’ (2013) n° 129, 13 EUISS Chaillot Paper).

It is relatively safe to say that the EU uses its sanctions policy in order to play out its role as a civil and liberal power (see for example Barbara Delcourt ‘Au nom de quoi sanctionner et punir?’ (2015/1) nº97 Revue internationale et stratégique 79). Not only is the EU’s external action guided by the norms that contributed to its creation, which are ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’, through its international relations the organization seeks to advance them in the wider world (as illustrated by the Treaty on European Union, Title 1, Article 3 and Title V, Chapter 1 ‘General Provisions on the Union’s External Action’, Article 21).

It is within the scope of this role that the EU adopts restrictive measures. Accordingly, through these measures the EU seeks to enforce compliance with one of the most fundamental rules of international law by pressuring Russia into changing its behavior towards Ukraine and complying with the Minsk Agreements. Notwithstanding the high structural costs of the sanctions to Russia’s economy and the negotiation of a ceasefire, it would appear that the sanctions have not encouraged Russia to change its policy in Ukraine but have instead been used to enforce anti-EU propaganda and have further alienated Russia from the EU, resulting in a stalemate between the two parties. Russian high-officials have stated that the sanctions against it are illegal and that they have contributed to souring relations between the EU and Russia, leading to a new Cold War (See these two statements: 1 and 2.) Tit-for-tat sanctions have followed as Russia has adopted its own measures against the EU. Finally, Russia has avoided isolation by forging new alliances.

Acts of aggression and the imposition of sanctions do not come about in a vacuum. Instead, they are the product of an interaction between agents whose respective identities and perceptions of a situation cause them to act in a certain way. From a sociological perspective, it would appear that the EU’s coercive measures have not encouraged the Kremlin to change its policy in Ukraine and cease its wrongful conduct. Taking into account constructivist notions of State identity and norms, the sanctions may have had the effect of encouraging Russia to further pursue its destabilizing, and illegal, policies in Ukraine. This is because the restrictive measures cause Russia to continue to view the EU as a threat. In as much as this perception of threat caused the Kremlin to pursue its destabilizing policy in the first place, the restrictive measures are not giving Russia incentive to change its behavior.

Indeed, as argued by Hopf in a recent article (Ted Hopf ‘”Crimea is ours”: a discursive history’ (2016) vol. 30(2) International Relations 227), Russian policies in the Ukraine can be understood as the result of Russia’s identity as, inter alia, a regional power that has historical and fraternal ties with Ukraine and its interpretation of Western policies coupled with the circumstances that arose in Ukraine. Russia may have felt threatened by NATO’s expansion and by Ukraine’s turn to the EU, which would have been perceived as the broadening of Western influence in Eastern Europe. Indeed, President Putin has expressed misgivings about the military alliance’s turn to Eastern Europe, which prevents the European continent from uniting and moving away from the Cold War mentality (see for example, 1 and 2); this concern has been expressed over the years, as illustrated by Putin’s speech at the Munich Security Conference in 2007. Under these circumstances, Russia reacted dominantly, or aggressively. When Russian officials state that the restrictive measures bring EU-Russian relations back to the Cold War, this is an indication that the sanctions contribute to the perception that the EU poses a threat. The Kremlin therefore continues its destabilizing policies in Ukraine because they are believed to be necessary to safeguard Russian interests and standing in the region. In a way, not complying with the EU’s demands become a value to the Russian Federation, who would have too much to lose if it were it to give into Western pressure (such as, for example, its standing as a regional power).

In conclusion, the argument here is that the restrictive measures have been counterproductive because they have contributed to promoting a situation of mutual distrust between the EU and the Russian Federation. Each actor continues to view the other as a threat and bases its response on this perception. This would mean that contrary to encouraging Russia to cease its policy in the Ukraine, the sanctions give Russia incentive to continue its actions in the region, which gives the EU incentive to pursue its sanctions policy, etc. Russia’s interpretation of Western powers’ policies in Ukraine and NATO’s expansion towards the East caused Russia to feel its fraternal ties with Ukraine were threatened and act aggressively. In response, the EU believes the norms it wants to defend in the ‘wider world’ are threatened and responds – with Kiev’s approval (see 1, 2, and 3)– by adopting coercive measures; this also allows the organization to fulfil its identity as a civil and liberal power that aims at promoting peaceful relations between States (see TEU, Title V, Chapter 1, Article 21(2)(c)). In the EU’s view, ‘it has a special responsibility for peace, stability and prosperity in Europe’ (see this statement). Instead of feeling the negative costs of its actions, the ban on exportations to Russia in technology is used as an opportunity to develop Russian industry and steps are being taken to substitute former EU and American agricultural imports (see here and here). Instead of being enforced, international law is continuously violated. The challenge is to free both parties from the deadlock. Unfortunately, this is unlikely to occur with the breaking down of communication, the pursuit of NATO operations in Eastern Europe and the continuation of the sanction tit-for-tat. Given this counterproductive outcome, the EU’s role as an enforcer of essential legal norms is being undermined. Nevertheless, as Wendt wrote: ‘if states find themselves in a self-help system, this is because their practices made it that way’ (Alexander Wendt ‘Anarchy is what States Make of it: The Social Construction of Power Politics’ (1992) 46:2 International Organization 391, 407). Hence, if the EU and Russia want out of the stalemate, they need to change their practices. The EU should focus on tools that promote dialogue and communication, which would bridge the gap and help Russia no longer perceive the EU as a threat. This may then have the effect of encouraging Russia to demilitarize in Ukraine.

Weekly News Wrap: Monday, August 1, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • United Nations children’s agency UNICEF said it is continuing its aid work in northeastern Nigeria, a former stronghold of Islamist militant group Boko Haram, despite an attack on a humanitarian convoy earlier this week.
  • Several people have been killed in an assault on a police base in the Somali capital, Mogadishu.
  • An aircraft wing part found in Tanzania is “highly likely” to be part of missing Malaysia Airlines flight MH370, an Australian government minister said on Friday, in what would be the second confirmed piece of the jetliner.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • The head of an Australian inquiry into the abuse of children in detention resigned on Monday, four days after being appointed to investigate prison video of aboriginal boys being abused, citing his lack of support from the country’s indigenous leaders.
  • Australians have rallied against the alleged mistreatment of young people in detention, including the hooding and physical restraint of teens, amid calls for an inquiry into the abuse to be expanded and the United Nation High Commission on Human Rights called on Australia on Friday to compensate children abused in prison.

UN/World

Emerging Voices 2016

by Jessica Dorsey

Our Fourth Annual Emerging Voices Symposium will kick off tomorrow. It features contributions from doctoral students and early-career academics or practicing attorneys posting about a research project or other international law topic of interest.

The Symposium will feature a few posts per week and will run for the next month. We hope you’ll join the conversation!

China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

Russia and the DNC Hack: What Future for a Duty of Non-Intervention?

by Duncan Hollis

There are lots of important issues implicated by this morning’s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee’s servers and leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago).  The domestic fall-out is already on evidence with the resignation of Debbie Wasserman Schultz and I’m sure we’ll see other impacts here in Philadelphia at this week’s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should).

But what does international law have to say about a foreign government obtaining and leaking e-mails about another country’s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the “threat or use of force against the territorial integrity or political independence of any state” and there’s no force at work in the current distribution of data otherwise intended to remain confidential.  But alongside the Charter’s prohibition on the use of force, customary international law has long recognized a ‘duty of non-intervention’ that applies to State behavior in cases falling short of the use of force.  The question then becomes whether the duty applies to this case and if so to what end?  For my part, I see at least three distinct sets of issues:  (i) attribution; (ii) the duty’s scope; (iii) the relevance of international law more generally to cyber security incidents like this one.

1. Attribution — Did Russia do this?  Attribution has both a factual and a legal element, both of which are at issue in the DNC case.  Factually, there’s the question of who actually perpetrated these hacks — the hacker(s) named Guccifer 2.0 claims responsibility but cybersecurity investigators suggest two separate penetrations tied to two different Russian hacker groups, “Cozy Bear” and “Fancy Bear” (international lawyers take note of how much more fun cybersecurity officials have in naming stuff than we do).  Making the factual case of who did what in hacks such as this is always difficult even as recent technological advancements have improved the ability to trace-back in certain cases. Just as importantly, however, there’s always the possibility of a ‘false flag’ where the true perpetrator goes to great lengths to make investigators think some other actor was responsible (i.e, planting evidence/code in a particular language or using coding patterns associated with a particular group of actors).  Ironically, the potential for a false flag means that a State caught red-handed can always invoke plausible deniability and suggest that they are themselves a victim as some other, unknown super-sophisticated actor is trying to frame them.  One can safely assume, for example, that Russia will make this argument in the DNC case.  Indeed, even in cases that appear clear cut like Sony Pictures, there are still those who resist FBI’s assertions of North Korean responsibility.

A second aspect of the attribution inquiry is a more legal one — namely, assuming the individual actors who perpetrated the hack can be identified, when can their actions be attributed to a State? This is not really at issue if the perpetrators are in a State’s direct employ (e.g. military officers or intelligence officials).  But what happens if the perpetrators are nonstate actors?  How much control would a State like Russia need to exercise over the DNC hack and later leak for it to bear responsibility?  That question is one that different international fora have answered differently in different contexts (the ICJ’s Nicaragua case and ICTY’s Tadic case‘s competing tests of effective versus overall control being the most famous examples).  As such, it’s difficult to say at present what relationship a State must have with nonstate hackers or hacktivists to bear responsibility for what they do.  That may not be a bad thing overall, as one can imagine how a clear line might incentive States to proliferate behavior just short of crossing the line in lieu of being chilled from acting generally if the whole area is cast as a truly grey zone.  That said, the ability to debate what international law requires in terms of the State-nonstate actor relationship complicates any application of the duty of non-intervention in individual cases.

2. Scope: What behavior violates the duty of non-intervention?  Assuming that Russia was responsible (which I should be clear at this point is just an assumption), the next question is whether its hacking and leaking of DNC data violated the duty of non-intervention?  Here again, international lawyers will encounter some uncertainty as the precise scope of the duty has never been fully resolved.  To be clear, there’s widespread consensus that a duty of non-intervention is customary international law.  The problems are more the duty’s contents.  The most famous formulation is undoubtedly that put forth by the ICJ in the Nicaragua case (para. 205), prohibiting interventions

bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.

The ICJ’s take suggests that intervention requires methods of coercion, forcing the victim State to make different choices than it might were it free of coercive interference.  This pairs with key parts of the earlier 1970 UN General Assembly Declaration on Friendly Relations Among States:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

Thus, much of the debate over the duty of non-intervention has focused on identifying which coercive measures below the use of force threshold are covered by the prohibition. But, looking at the DNC hack, there’s little evidence that Russia is trying to coerce any particular result. Indeed, it’s not even clear that the goal of the hack was to support Trump’s candidacy.  The operation could have other purposes; for example, I’ve seen suggestions that it might have been a response to Russian presumptions that the United States bears responsibility for the Panama Papers, a data breach that caused some discomfort to Putin’s administration.  Given this, might we not simply write this hack-off as a particularly visible form of espionage?  Is this case equivalent, for example, to the OPM hack?  That hack, while clearly contrary to U.S. national security interests, was not terribly susceptible to claims of an international law violation given international law’s longstanding, complicated relationship with surveillance (for more see Ashley Deek’s recent article).

I’m not so sure, however, that the duty of non-intervention can be dismissed so quickly.  For starters, the hackers did not just take the data and use it to inform their own policies or behavior. They also leaked it, and did so in a way where the timing clearly sought to maximize attention (and corresponding impacts) on the U.S. domestic political campaign process.  Perhaps we need to separate out this incident into two parts — the espionage (i.e., the hack itself) and the interference in the U.S. campaign using the fruits of that espionage.  Doing so suggests the leaking might be the problematic act under a less quoted paragraph of the 1970 U.N. General Assembly Declaration’s description of the duty of non-intervention:

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Interference in ‘any form’ is clearly a broader formulation than coercive acts, suggesting that actions designed to impact public support for not just a particular candidate, but an entire “political” party, could implicate the duty of non-intervention here.  That said, there are others who’ve been thinking much more carefully on the question of non-intervention and cyberspace than I have.  Later this year, for example, we should be able to read the fruits of Tallinn 2.0, the much-anticipated follow-up to the Tallinn Manual and its take on international law applicable to cyberwar.  Tallinn 2.0 will offer the views of an independent group of experts on how international law regulates cyberspace outside of the use of force and jus in bello contexts, including the duty of non-intervention.  I imagine I’m not alone in wanting to know whether and how its contents will speak to the current DNC crisis.

3. Remedies:  Does International Law Really Matter Here? Talking about this case in the last 24 hours, I’ve had a couple of non-lawyer friends express skepticism over international law’s relevance to the DNC hack.  Given our age, my friends hearken back to the Cold War, suggesting that Russia can and will ignore international law with impunity here (one of the more sanguine among them, also pointed out that the United States has its own history of interfering in foreign elections, a point Jack Goldsmith made earlier today at Lawfare). And, to be sure, there’s some merit to this critique.  After all, Russia’s Security Council veto ensures the inability of that body to respond to these events in any way. And U.S. resistance to the jurisdiction of international courts and tribunals precludes any real chance that a third-party would review the case.

Still, I think it’s important to raise the international legal issues for at least three reasons.  First, and perhaps most obviously, international law does provide self-help remedies in cases of state responsibility, including retorsion (otherwise legal acts done in response to unlawful behavior) and counter-measures (behavior that would otherwise be unlawful but for the fact that it is itself in response to unlawful behavior).  Thus, if Russia was responsible for the DNC hack and that hack did violate the duty of non-intervention, it would free the United States to engage in counter-measures vis-a-vis Russia that would otherwise be unlawful.  Time and space preclude me from surveying all the various counter-measure options that the United States might have, although I’d note there’s an interesting ancillary question of whether international law might limit the U.S. from pursuing certain counter-measures — such as interfering in Russia’s own domestic political process — if doing so is analogous to humanitarian obligations, which are non-derogable (i.e., you cannot violate the human rights of another State’s nationals just because they violated your nationals’ human rights).  I’d welcome reader thoughts on such limits as well as a more open discussion of the types of counter-measures that might be legally available in this case or any collective measures that could be in play.

Second, there’s the question of what happens if international law is not invoked or applied to this case? To the extent state practice can involve acts and omissions, might silence suggest that this sort of behavior (hacking and releasing political parties’ internal communications) is perceived as lawful (or at least not internationally wrongful)?  In other words, how States react to this case will have follow-on effects on future expectations of responsible State behavior, leading to new norms of behavior in cybersecurity.  This is a topic on which I’ve been spending A LOT of time lately with a forthcoming article in the American Journal of International Law that I’ve co-authored with Martha Finnemore (we’ve not posted it yet, but interested readers should e-mail me if they’d like to see a draft).

Finally, there’s an academic reason to undertake this analysis.  In recent years, scholars have debated and emphasized ways to shrink the duty of non-intervention, under the banner of things like human rights (unseating the old assumption that international law did not care what a State did vis-a-vis its own citizens in its own territory) or humanitarian intervention (the idea that responding to a State’s failure to protect those within its borders is more important than the duty of other States to stay out of domestic jurisdiction matters).  I wonder if these arguments are relevant to the current controversy?  Have they inadvertently created space for additional exceptions or otherwise shifted the scope and reach of any duty of non-intervention?  I might be wrong to worry about any such link, but I do think the issue warrants further study.

Thus, I think this is an important case that bears close attention.  I’d like to see how the United States responds publicly, if at all, to the allegations, not to mention how other States or actors view the behavior in question.  For international lawyers, moreover, I’d hope to see further discussions of how to attribute responsibility in cyber security incidents as well as more detailed analyses of how the duty of non-intervention applies in cyberspace than we have had to date.  To that end, I’d welcome reader thoughts and comments.  What have I got wrong?  What am I missing?

 

Alaskans and Canada’s Transboundary Mining Pollution: Kick-starting the US-Canada Bilateral Pollution Regime

by Kenta Tsuda

[Kenta Tsuda is an attorney at the non-profit law organization Earthjustice in Juneau, Alaska. Earthjustice was involved in the Pelly Amendment process described below in the post.]

For millennia the peoples of southeast Alaska have prized the salmon harvests of the Taku, Stikine, and Unuk rivers, three transboundary waterways flowing from headwaters in British Columbia’s Coastal Range through Southeast Alaska to the sea.  Customary harvests continue today, along with tens of millions of dollars’ worth of commercial fishing.  In recent years, however, Alaskan  communities have faced a threat of potentially devastating transboundary pollution from mines in British Columbia.  Hard-rock mines exploiting gold-copper deposits in the headwaters of the three rivers would produce billions of tons of waste rock and tailings.  Each would require indefinite treatment of uncertain efficacy to prevent the poisoning of surrounding watersheds by a toxic cocktail of acidity and dissolved heavy metals.  This contamination could have population-level harms on salmon, both in Canadian reaches of these waters and on the U.S. side of the border.  Downstream communities in Southeast Alaska fear for their economic futures and ways of life, while Canadian authorities are allowing the projects to advance.  Alaskan groups now seek resolution of the dispute at the international level.  To that end, under a domestic statute they have invoked the U.S. Government’s duties to confront these environmental threats, aiming to prompt the Government’s assertion of rights held under international law.

The transboundary nature of the threat limits private legal action on the American side of the border.  The situation requires what Professor Thomas Merrill has described as a transboundary collective action regime.  As Merrill has explained, such regimes are difficult to create, however, “if some mechanism can be devised for inducing mutual cooperation, the situation is potentially a positive-sum game for all.”  In the case of the United States and Canada, a mechanism for addressing transboundary pollution already exists: under Article IV of the 1909 Boundary Waters Treaty the United States has a right against transboundary pollution from Canada.  This same instrument creates an institution to address potential violations of treaty rights, the International Joint Commission (IJC).  Under Article IX, the parties agree that “any . . . questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier” could be referred to the IJC “for examination and report.”  A referral would entail the governments of both the United States and Canada formally requesting that the commission exercise its investigative powers with respect to specific questions of rights or interests along the frontier.  Such Article IX referrals have been made many times.  Although IJC findings in response to a referral are not automatically binding, historically the parties have abided by them.  For these reasons, groups in Alaska and Canada—indigenous communities, commercial fishing interests, conservationists—as well as Alaska’s congressional delegation, and Washington’s Senators Murray and Cantwell, have requested that the State Department consider referring to the IJC questions regarding the potentiality of and means to prevent transboundary pollution from hard-rock mines in the three watersheds.  So far, both American and Canadian federal governments have demurred, suggesting that an information-sharing agreement between the state of Alaska and Province of British Columbia—which cannot be binding, and therefore includes no liability rule—might eventually yield a solution.

To encourage further consideration and engagement among federal agencies, and ultimately the Federal Government’s referral of the issue to the IJC, Alaska Native and conservation groups recently invoked a domestic legal lever to prompt an invesigation by the Department of the Interior.  The groups, including the environmental law organization Earthjustice, submitted a petition invoking Secretary of the Interior Sally Jewell’s duties under the 1971 Pelly Amendment to the Fishermen’s Protective Act.  Under this statute, the Secretary must investigate and certify to the president if foreign nationals act to diminish the effectiveness of a U.S. conservation treaty.  The petitioners describe six mine projects in the transboundary watersheds, detailing how they threaten Pacific salmon and steelhead trout—protected under the 1991 Anadromous Stocks Conservation Convention—as well as the grizzly bear and woodland caribou—protected by the Western Hemisphere Convention.  The petition requests the Department of the Interior to bring its expertise to bear upon the issue via an investigation of the mines and their environmental effects, and for Secretary Jewell to engage her colleagues in the federal executive to seek a referral of the issue to the IJC.

This developing situation demonstrates that parties to an established transboundary collective action regime must actively exercise their relevant rights and privileges to protect the interests of their citizens against transboundary threats.  It also illustrates the potential role that domestic statutory remedies can play in private actors’ efforts to address transboundary threats, even where the domestic law does not afford ample opportunity directly to address sources of transboundary pollution.

Two Postdocs at Melbourne Law School with Adrienne Stone

by Kevin Jon Heller

Are you a new PhD or about to finish your PhD? Do you focus on comparative constitutional law? If so, you will definitely want to apply for one of the two postdocs at Melbourne Law School that Adrienne Stone, now a Laureate Fellow, is offering:

About the role

Professor Adrienne Stone’s Kathleen Fitzpatrick ARC Laureate Fellowship Program aims to address a problem for liberal democracies: the need to reconcile the tensions between the pursuit of diversity and the promotion of social cohesion. The critical problem is becoming increasingly urgent as nations grapple with the challenges of highly diverse multi-cultural societies. The team working on the Fellowship will draw on the experiences of constitutionalism throughout the world to investigate how Constitutions, in their design and in their application, can serve as a unifying force while still nurturing the diversity appropriate for a complex, modern society.

About you

Applicants must have graduated or have met the requirements to graduate with a PhD in Law, or a related field by 1 December 2016. Applicants must provide evidence of the award of their PhD, including date of award. Applicants must be able to commence employment between 1 December 2016 and no later than 1 December 2017.

Melbourne is a great place to live and work — and there is quite simply no one better to work with than Adrienne. She is not only one of the world’s leading comparative constitutional law scholars, she is an extraordinarily wonderful person. She was one of my favourite colleagues at Melbourne, and she remains one of my dearest friends.

Deadline to apply is August 12.

Weekly News Wrap: Monday, July 25, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

  • Several people have been killed when a mortar bomb hit a restaurant in the government-controlled ancient quarter of the Syrian capital Damascus on Sunday, a monitor and a witness said.
  • As the war rages on, Syrian children are starving to death.

Asia

  • Southeast Asian nations failed to agree on maritime disputes in the South China Sea on Sunday after Cambodia blocked any mention to an international court ruling against Beijing in their statement, diplomats said.
  • Chinese Foreign Minister Wang Yi has criticized South Korea’s move to deploy an advanced U.S. anti-missile defense system to counter threats from North Korea, saying it harmed the foundation of their mutual trust, news reports said on Monday.

Europe

Americas

Oceania

UN/World

Sarah Kay on What Brexit Means to Her

by Kevin Jon Heller

My brilliant friend Sarah Kay, a prominent human-rights lawyer in the UK and Europe born in Dublin and raised in Belfast, posted the following statement on Facebook about what Brexit means to her. We’ve had some legal and political analysis of Brexit on the blog, but Brexit is also, and perhaps even fundamentally, personal — if it happens, it will have a lasting effect on people’s lives and, as Sarah explains, sense of identity. My thanks to Sarah for letting me re-post her statement.

I am a Cold War kid. I still refer to anything east of Bremen as “the east”; I still have to blink rapidly when the u-Bahn in Berlin stops at friedrichstrasse; I have a vivid memory of sirens howling at noon on an overcast day of primary school for an exercise in surviving a nuclear bomb attack.

I am a Troubles kid; anything east of Belfast Central is foreign to me. Taking the train from Dublin, I inform friends of my arrival by letting them know I have crossed the Border. My phones have all capitalised the fault line, and so does my brain. When exiting Europa station, I always look up and am surprised for a second to see the hotel still standing.

I am a Yugoslavia kid. I always need a map to remember the exact frontier between Bosnia and Serbia; every deployment of blue helmets dries my mouth, as if helplessness was rooted in that very despair. I have never used the phrase “brick and mortar” because mortar has a much different meaning for me.

In a way, I am also a WW2 kid. My grandfather was an Operation Dragoon veteran; I keep a photo of my grandmother with my infant uncle in her arms, after she birthed and nursed him on her own in a military base in Tunisia. My mother told stories of food ration tickets in the mid-1960s. I have kept my grandfather’s uniform and ceremonial sword.

I was too young to vote for the Maastricht referendum; but I came along to the polling booths, and was allowed to place the “yes” bulletin in the envelope, and then ceremonially place it in the box. Exiting the polling place, I was handed a tiny EU flag. I ran around with it all day, and waived it as I watch the results be announced.

I was in law school during the switch to the common currency. I remember my first 2 euro coin, looking at which flag was on the flip side, wondering who used it first, which country it had been forged in. I still do it with all my Euro change. I remember being small in Italy and paying for bread in thousands of lira. The euro changed that; I remember I loved that wherever I went, I could use it.

I also remember Ireland’s No to Lisbon in 2009. I remember wondering why, where my country had it so wrong. I read about Luxembourg, I read about Frankfurt, I read about austerity, I read about Ireland’s lone highway and how we were “the third world of Europe”. I remember reading about opt-outs; I remember thinking that our economically weak but politically strong identity had to fit in somewhere….

Symposium on Mann, Humanity at Sea

by Kevin Jon Heller

I’m delighted to call readers attention to a symposium next week on my friend Itamar Mann’s new book, Humanity at Sea: Maritime Migration and the Foundations of International Law, which was just published by Cambridge University Press. Here is the 411:

This interdisciplinary study engages law, history, and political theory in a first attempt to crystallize the lessons the global ‘refugee crisis’ can teach us about the nature of international law. It connects the dots between the actions of Jewish migrants to Palestine after WWII, Vietnamese ‘boatpeople’, Haitian refugees seeking to reach Florida, Middle Eastern migrants and refugees bound to Australia, and Syrian refugees currently crossing the Mediterranean, and then legal responses by states and international organizations to these movements. Through its account of maritime migration, the book proposes a theory of human rights modelled around an encounter between individuals in which one of the parties is at great risk. It weaves together primary sources, insights from the work of twentieth-century thinkers such as Hannah Arendt and Emmanuel Levinas, and other legal materials to form a rich account of an issue of increasing global concern.

Author: Dr Itamar Mann (Senior Lecturer, University of Haifa, Faculty of Law)

Chair: Professor Panos Koutrakos (Professor of Eurpean Union Law, Jean Monnet Professor of European Law, City Law School, City University London)

Discussants: Professor Guy S. Goodwin-Gill (Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, University of Oxford); Dr Hagar Kotef (Senior Lecturer of Political Theory and Comparative Politics, SOAS, University of London); Dr Ioannis Kalpouzos (Lecturer in Law, City Law School, City University London).

The symposium is next Wednesday, the 27th, from 6:00-7:30 at City University. Full information here. I will be out of town, unfortunately, but it should be a great event. Attend!