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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!

Emojis and International Law

by Chris Borgen

Emojis: love them or hate them, you can’t seem to get away from them.  🙂  The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like.  And tomorrow, June 21, we will have 71 new emojis to play with.  Why will there be new emojis tomorrow? And what does this have to do with international law? Read on…

First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts.  Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).

Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.”  The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎

Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols  should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year.   (By way of perspective the total  “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here.  Can’t wait to use the team handball emoji!

But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:

The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.

“Our goal is to make sure that all of the text on computers for every language in the world is represented,”

However, as Mashable notes:

getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.

What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.

But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.

Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium.   The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)

Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question  of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji.  Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation.  Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated: (more…)

Events and Announcements: June 19, 2016

by Jessica Dorsey

Event

  • Adjudicating international trade and investment disputes: between interaction and isolation The PluriCourts Centre of Excellence at the University of Oslo will host a two-day conference on international trade and investment disputes. The conference will take place on Thursday and Friday, August 25-26 at the Faculty of Law, University of Oslo, Norway. The webpage with the final programme and registration information is available here. For more information, please contact: Daniel Behn, PluriCourts (d [dot] f [dot] behn [at] jus [dot] uio [dot] no).

Calls for Papers

  • The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for the Study of Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring and junior academics can get feedback through group discussion on academic works in progress in international dispute resolution. Authors will not give formal presentations of their work. Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. This format permits lively discussion of ideas and writings that may be inchoate or not yet fully developed. Discussants may include other junior academics at Yale and other authors participating in the workshop.  The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. All participants will be expected to attend the entire workshop and to be prepared to comment on the other papers,up to a maximum of three. We are unfortunately unable to fund travel but will host a dinner in the evening.  500-700 word abstracts may be submitted by midnight Eastern Time,J uly 15, 2016 to this folder. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. The authors whose proposals are chosen will be informed by August 15th, 2016. All participants must submit a substantial work in progress by October 7, 2016, which will be circulated in advance of the workshop to registered attendees.  Please direct any questions to sadie [dot] blanchard [at] yale [dot] edu. The full call for papers is available here.
  • The Hugo Valentin–Centrum of the Uppsala Universitet is pleased to announce a call for papers for its upcoming panel on “Emotional Warfare and its Limits: Towards an Affective Turn in International Humanitarian Law”, organized in the context of the International Conference on “Historicising International (Humanitarian) Law? Could we? Should we?” on 6–8 October 2016When and why did the law of armed conflict become “humanitarian”? What role do fear, envy, or friendship play in the regulation of war? Can law offer an effective way out of the irrationality of violence? Possible answers to these questions cannot be addressed by means of strictly legal arguments, and should find place in other disciplines which have been traditionally permeated by an emotional discourse. This panel will discuss the conceptual debate on feelings such as hatred, resentment, compassion, nostalgia, fear, empathy/sympathy, jealousy, shame, humiliation, affection/love, among others, in order to examine international humanitarian law in its historical sense. Suggested topics may include (but not limited to): Emotions involved in the development of international humanitarian law; the role of emotions in the creation of customary international humanitarian law; and the affective expression of international States and non–state entities during armed conflicts. Abstracts of no more than 500 words should be submitted by e-mail to Emiliano J. Buis (ebuis [at] derecho [dot] uba [dot] ar) and Ezequiel Heffes (ezequielheffes [at] gmail [dot] com) no later than July 18, 2016. Abstracts should be accompanied by name, affiliation and e-mail address. Proposals will be selected on the basis of their quality, originality, and thought–provoking capacity. Any questions about these themes or the suitability of a possible submission may be directed by e-mail to the abovementioned individuals.
  • The Center for Human Rights and Global Justice (CHRGJ) invites submissions of scholarly papers for a conference on human rights and tax, to be held at NYU School of Law on September 22-23, 2016. The conference aims to develop a deeper understanding of the ways in which tax policy is a centrally important form of human rights policy, and to consider how the international human rights framework can best be used to promote greater equality and justice through the global tax regime. For years, resource constraints have been cited as the principal limitation on the ability of States to fulfill their human rights obligations, particularly when it comes to economic, social and cultural rights. Yet with few exceptions, human rights scholars and practitioners have shied away from core economic and financial debates, leaving the policies that shape resource availability and allocation largely in the hands of economists, tax and investment lawyers, and “development” experts. Those technocrats, in turn, have rarely paid heed to the expanding corpus of human rights law and its implications for State and non-State actors. There has been very little dialogue between tax and human rights experts, and even less scholarship on the intersection of these fields. CHRGJ’s conference aims to help fill that gap. See Call For Papers here for further details. Submission deadline is 1 July.
  • Call for Abstracts: The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring academics, post-docs, doctoral students, fellows, VAPs, other non-tenure-track academics, and pre-tenure professors can get feedback through group discussion on academic works in progress in international dispute resolution. The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. We are unfortunately unable to fund travel but will
    host a dinner in the evening. 500-700 word abstracts may be submitted by midnight Eastern Time, July 15, 2016. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. More details are available here.

Announcements

  • The British Institute of International and Comparative Law is currently advertising for the Director of the Investment Treaty Forum and Senior Research Fellow in International Investment Law.
  • The latest issue of Trade, Law and Development (Vol. 7, No. 1) [TL&D] has been published. The special issue is on Government Procurement.
  • In 2015 the Faculty of Law of Maastricht University has taken over The Hague Prize for International which was established in 2002. With a view to continuing the Prize Maastricht University will collaborate with the Municipality of Maastricht. The main Prize will be awarded every five years to individuals who have made- through publications or achievements in the practice of law – a special contribution to the development of public international law or private international law or the advancement of the rule of law in the world. The Prize consists of a diploma, a monetary award of € 10.000,- and a drawing. The prize will be awarded for the first time in Maastricht on 8 December 2016. In the intervening years when the main Prize is not awarded, a Junior Prize will be awarded to promising younger academics in the field of human rights. The Junior prize will be awarded for the first time in 2018. It will carry a financial award of € 3.000,-.Recipients of the Hague Prize for International Law in the past included Prof. Shabtai Rosenne (2004), Prof. M. Cherif Bassiouni (2007), Dame Rosalyn Higgins (2009), Prof. Paul Lagarde (2011) and Prof. Georges Abi-Saab and Prof. Sir Elihu Lauterpacht (2013). The Board of the Maastricht Prize Foundation hereby invites anyone to nominate candidates who deserve such recognition for their contribution to international law. Nominations for the Prize will be accepted until 1 August 2016. Chairperson of the Nominating Committee is Prof. L. Lijnzaad. Reasoned recommendations for nominations should be sent to Prof. J. Vidmar, Secretary of the Nominating Committee, Maastricht University, Department of International and European Law, P.O. Box 616 Maastricht, The Netherlands, or by email:
    law-maastrichtprize [at] maastrichtuniversity [dot] nl by 1 August 2016. Additional information can be found on the website of the Maastricht Prize.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Venezuela’s Crisis Tests the OAS’ Legal Commitment to Defending Democracy

by Julian Ku

Foreign Policy has a great report from Michael Shifter on the ongoing diplomatic battle within the members of the Organization of American States over how to respond to Venezuela’s ongoing political and economic crisis.  According to Shifter, the OAS Secretary General Luis Almagro is pushing hard to get the OAS membership to invoke Article 20 of the OAS Democratic Charter at the upcoming June 23 special session.  Under Article 20, the Secretary General may ask the Permanent Council of the OAS to “collectively assess” as situation where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”   The Permanent Council can then undertake “necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.”

The OAS Secretary-General has already issued a long 114 page report explaining why he believes (starting on p. 35) that there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order” of Venezuela.  I haven’t been following the Venezuela situation closely, but this report certainly lays out a strong case.  Even more importantly in my view, it offers a good explanation of why members of the OAS have (via the Democratic Charter) a strong international legal obligation to democratic governance.

The penalties for breaching this obligation aren’t all that onerous.  Under Article 21, the OAS, via a special session, can suspend Venezuela from the OAS. I am not sure how likely this is to happen, given that Article 21 has a 2/3 majority requirement.

Still, I find this whole episode a fascinating example of how an international organization can become the key vehicle for influencing the domestic governance of one of its member states.  Key states are concerned about the crisis in Venezuela, and it looks like the OAS will be the chosen vehicle of (very soft diplomatic) intervention.

Mark Kersten’s New Book on the ICC

by Kevin Jon Heller

I am delighted to announce that OUP has just published Mark Kersten’s new bookJustice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Here is the press’s description:

What happens when the international community simultaneously pursues peace and justice in response to ongoing conflicts? What are the effects of interventions by the International Criminal Court (ICC) on the wars in which the institution intervenes? Is holding perpetrators of mass atrocities accountable a help or hindrance to conflict resolution? This book offers an in-depth examination of the effects of interventions by the ICC on peace, justice and conflict processes. The ‘peace versus justice’ debate, wherein it is argued that the ICC has either positive or negative effects on ‘peace’, has spawned in response to the Court’s propensity to intervene in conflicts as they still rage. This book is a response to, and a critical engagement with, this debate.

Building on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution, and negotiation theory, the book develops a novel analytical framework to study the Court’s effects on peace, justice, and conflict processes. This framework is applied to two cases: Libya and northern Uganda. Drawing on extensive fieldwork, the core of the book examines the empirical effects of the ICC on each case. The book also examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the Court and the ICC’s institutional interests, arguing that the negotiation of these interests determines which side of a conflict the ICC targets and thus its effects on peace, justice, and conflict processes.

While the effects of the ICC’s interventions are ultimately and inevitably mixed, the book makes a unique contribution to the empirical record on ICC interventions and presents a novel and sophisticated means of studying, analyzing, and understanding the effects of the Court’s interventions in Libya, northern Uganda – and beyond.

I’ve been following (and promoting) Mark’s work for a long time — since he was a PhD student at the LSE and had just started the blog Justice in Conflict. The blog has turned into a major player in the world of international criminal law, and I have no doubt that Mark’s book will have a significant impact on the field, as well. I’ve had the pleasure of reading it, and it’s excellent.

Buy Kersten! You’ll learn something and help better society, because Mark says that “OUP has agreed to make up to 200 copies of the book available, with all royalties I earn from sales of the book being used to pay for those copies to be shipped to libraries and universities across Africa, especially to those in ICC-affected countries.”

ASIL Research Forum: Call for Papers

by Duncan Hollis

From our friends at ASIL comes word of the call for proposals for this year’s ASIL Research Forum. The deadline for proposals is July 11.  Here’s the text of the whole message:

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at ASIL Academic Partner University of Washington School of Law in Seattle, Washington, November 11-12, 2016.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress from across the spectrum of international law. Please note that – in addition to academics – private practitioners, government attorneys, international organization representatives, and non-government lawyers are frequently selected to present papers based on the abstracts they submit.

Papers may be on any topic related to international, comparative, or transnational law and should be unpublished at the time of their submission (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Multiple submissions are welcome, but authors will only be selected to present on a single abstract, including co-authored papers.

For full instructions and to submit a proposal, visit www.asil.org/researchforum. Submissions are due by 12 noon ET on Monday, July 11, 2016.

 

Memorials for My Friend and Colleague, John Jones QC

by Kevin Jon Heller

On behalf of Doughty Street Chambers, I want to publicise two Memorials — one in the Hague and one in London — that will be held in the next few weeks for John Jones QC, beloved friend and colleague, who tragically passed away in late April. Here is the information:

In order to celebrate the life and many personal and professional achievements of our much missed friend and colleague John Jones QC, two memorial events are organised in The Hague and London.

A celebration of John’s life will be held at The Hague Institute for Global Justice on Wednesday 29th June at 7.00pm followed by a reception (a map is available by clicking here).

There will also be a Memorial in London at Middle Temple Hall (click here for directions) on Wednesday 6th July starting at 5.00pm followed by a reception in Middle Temple gardens. The Hall will be accessible from 4.30pm.

For more details and RSVP, click here.

I hope everyone who knew and loved John will be able to attend one of the Memorials. I will be at the one in London in early July.

Does the International Court of Justice Have Jurisdiction over Iran’s Claim Against the U.S? Actually, Maybe It Does

by Julian Ku

After about two months of public statements threatening to take the U.S. to the International Court of Justice over frozen Iranian assets, Iran finally instituted ICJ proceedings yesterday under the 1955 U.S.-Iran Treaty of Amity, Economic Relations, and Consular Rights.  Iran alleges in its complaint that the U.S. has violated the treaty’s obligations by taking Iranian government assets and redistributing them to families of U.S. marines killed in the 1983 Beirut bombing.  In April, the U.S. Supreme Court upheld the constitutionality of a 2012 congressional statute authorizing the seizure of Iranian government assets for distribution to the plaintiffs.

Iran argues that the U.S. government violated the 1955 Treaty in numerous ways by its failure to recognize the separate legal identity of the Iranian Central Bank and other state-owned companies and its failure to provide protection for such property as required by international law.  Iran further alleges that the U.S. conducted an expropriation of Iranian assets, while also denying access for those legal entities in US. court, while at the same time failing to respect their sovereign immunity, as well as other treaty violations.

Under paragraph 2 of Article 21 of the Treaty,

 

Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

I have previously tweeted on more than one occasion that the ICJ would have no jurisdiction, but I had forgotten about this provision (luckily someone reminded me on Twittter).  Believe it or not, Article 21 of the U.S-Iran Friendship Treaty has already been the basis for two prior ICJ proceedings: the U.S. case against Iran’s seizure of the U.S. embassy and its personnel (1979) and the Iranian case against U.S. actions against its Iranian oil platforms in 1992.  So it is clear that Article 21(2) is a legitimate basis for jurisdiction, and the ICJ held in both prior cases that this provision conferred jurisdiction upon it.

On the other hand, Article 21 limits a party’s claim to a “dispute…as to the interpretation or application of the present Treaty.”  This means Iran will have to limit its claim to violations of the treaty, rather than violations of general international law.  This is harder than it looks.  In the 2003 Oil Platforms judgment, the ICJ found that it had jurisdiction, and that U.S. attacks on the oil platforms were not justified on self defense. The ICJ nonetheless found that Iran’s claim that U.S. attacks on its oil platforms did not breach the “freedom of commerce” between the two nations, since no such commerce in oil was occurring at that time.  So the U.S. lost on jurisdiction, but won on the merits.

So I am going to reverse my earlier views and tentatively guess that the ICJ will find that it has jurisdiction over this case.  In particular, I think Iran will have a good argument that Article IV(2), which requires the U.S. give Iranian nationals’ property “the most constant protection and security within the territories of the other High Contracting Party, in no case less than that required by international law….” (emphasis added). I am not sure Iran is right that the U.S. violated Article IV(2), but I think Iran has a plausible argument that it could have been violated. That should be enough for jurisdiction.

I nonetheless expect the U.S. government to make a big fight over jurisdiction and admissibility. Even if it loses, the U.S. can slow down these proceedings tremendously by battling over jurisdiction and narrowing which claims Iran can bring forward.  This strategy worked very well in the Oil Platforms case.  Iran filed the proceedings in 1992. The ICJ did not issue an determination on jurisdiction until 1996.  The ICJ then took another seven years to finally issue a judgment on the merits in 2003 (which the U.S. won anyway).  With any luck, the U.S. could avoid a merits judgment here until 2027.

I think this case might move along more briskly, but it will still take a while.  And I think the slow wheels of international justice might work out for both sides here. Iran’s leaders can say they are doing something, but it will not result in any immediate judgment that will put the U.S. on the spot.  The U.S. can drag this out, and it might even prevail on the merits (I have no strong opinion on that complex issue yet).

I do not expect the U.S., however, to boycott of the entire proceedings, as China has been doing in the Philippines South China Sea arbitration.  For one thing, there is really no need, as I explained above, since we could be in for a 10 year wait for a judgment. For another, the U.S. needs to show that it plays nice with international law and courts to bolster its own calls on China to abide by the South China Sea arbitration.

Emerging Voices 2016: Call for Submissions

by Jessica Dorsey

This summer we will host our Fourth Annual Emerging Voices symposium, where we invite doctoral students and early-career academics or practicing attorneys to tell Opinio Juris readers about a research project or other international law topic of interest.

If you are a doctoral student or in the early stages of your career (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing your final degree) and would like to participate in the symposium, please send a draft blog post somewhere between 1000-1500 words and your CV to opiniojurisblog [at] gmail [dot] com by July 6, 2016.

Submitted posts will then be reviewed by our editors. We’ll let you know by mid-July if your post will be included. Final essays will be posted on Opinio Juris in mid July through late August.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

Alexander Hamilton, the New Republic, and the Law of Nations

by Chris Borgen

There’s this musical on Broadway. It’s called Hamilton.  You might have heard of it. It’s causing legal scholars to say things like “I admired Hamilton since before he could rap,” and “My Shot has a pretty good lyric but have you tried Federalist no. 6?”

Anyway, a short note on A. Ham. and the law of nations seems in order.  For the following, I am particularly indebted to  Mark Janis’ book America and the Law of Nations 1776-1939 (Oxford 2010), David Bederman’s volume The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge 2008) and Hamilton’s Republic (The New Press 1997), a compilation of writings by Alexander Hamilton and later “Hamiltonian” writers edited and introduced by Michael Lind. These authors and others writing about Hamilton do not necessarily come to the same conclusions regarding his views on what we now call international law, but rather provide  varying perspectives on a complex man.

By way of background, the views of the founders were in part shaped by their education in classical history as well as Enlightenment philosophy.  David Bederman, in his study of classical thought and the U.S. Constitution, wrote that “[s]tarting first with classical writers in Greek, the Framing generation particularly prized the works of Plato, Aristotle, Thucydides, Polybius, and Plutarch, in that rising order of esteem.” (Bederman, 15.)   Thucydides’ international realism and Polybius’ conception of a “mixed constitution” combining monarchy, oligarchy, and democracy were especially influential on the founding generation. Hamilton was particularly fond of quoting Plutarch, whose biographies combine issues of public policy and state building with individual moral choice. (Bederman,16-17; 22.) Hamilton and other founders may have used “instrumental classicism,” to support their political arguments, but they also did a “reputable job in trying to make sense of antiquity,” with Hamilton among the “best” classicists. (Bederman, 228.)

Beyond classical history and philosophy, the founders were also influenced by Enlightenment philosophy and, as a group, were well-versed in the 18th century law of nations and often referred to it in their writings. Mark Janis, in the first volume of his history of the United States and international law, argued that “[n]o group of America’s leaders have ever been more mindful of the discipline[of international law] than were the Founding Fathers.” (Janis, 24.)

In relation to studies in natural law at Kings College (later, Columbia University), Alexander Hamilton suggested in 1775 a reading list of “Grotius, Pufendorf, Locke, Montesquieu, and Burlemaqui.” (Janis, 24-25.) This shows, at least, his exposure to foundational texts of international law.  However, suggesting a reading list on natural law and actual application of the law of nations in practice are two different things. So, how concerned was Alexander Hamilton with the application of the law of nations to the “young, scrappy, and hungry” republic?

Here we can see some divergence in interpretation by scholars. Janis notes that in 1795 Hamilton (more…)

I’d Like to Be Under the South China Sea in a Crewed Deep Sea Platform in the Shade

by Chris Borgen

Earlier this week, Julian and I each posted about the international legal issues of the Moon and asteroid mining plans of U.S. companies. Those projects may have sounded like something out of Space 1999 but now we hear of one of China’s near-term priorities that sounds like SeaLab 2020.

Bloomberg reports:

China is speeding up efforts to design and build a manned deep-sea platform to help it hunt for minerals in the South China Sea, one that may also serve a military purpose in the disputed waters.

Such an oceanic “space station” would be located as much as 3,000 meters (9,800 feet) below the surface…

This would be by far the deepest long-term undersea facility (as opposed to a deep sea vessel, such as a submarine). By way of context, the NASA Extreme Environment Mission Operations Facility (NEEMO), the “world’s only undersea research station” is anchored at a depth of 62 feet.

China’s leadership explains that, in part, this base will help with a new frontier of resource development, using rhetoric that is at times similar to the arguments some make concerning private space ventures on the Moon and asteroids:

President Xi Jinping said at a national science conference in May: “The deep sea contains treasures that remain undiscovered and undeveloped, and in order to obtain these treasures we have to control key technologies in getting into the deep sea, discovering the deep sea, and developing the deep sea.”

But, beyond looking for deep sea resources, the concern is that the base is part of China’s gambit for sovereignty over much of the South China Sea.  However, while establishing this undersea platform may become part of China’s political argument for its sovereignty claims, it does nothing to support the legal argument. Under the UN Convention on the Law of the Sea (UNCLOS), this undersea platform would probably be treated as an “artificial island,” like an oil rig.  At the time that UNCLOS was being drafted, large undersea bases were more the province of James Bond movies than treaty negotiations, so the closest analogy in the text is what would likely be applied in this case.  (For a discussion on sea platforms, “seasteading,” and sovereignty claims by non-state actors, see this post.)

Although it is not clear where the location of this undersea lab would be, UNCLOS has similar provisions concerning artificial islands located in an Exclusive Economic Zone (article 60) or on the continental shelf (article 80, which refers back to the article 60 text, with any applicable adjustments).

The text from article 60 states:

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

So, in short, building this base would not change China’s territorial rights.

However, the concern is that, while it may not help the legal argument, another goal of the base may be to bolster the political argument with some military muscle. The Bloomberg article quotes the following:

“To develop the ocean is an important strategy for the Chinese government, but the deep sea space station is not designed against any country or region,” said Xu Liping, a senior researcher for Southeast Asian affairs at the Chinese Academy of Social Sciences, a government-run institute.

“China’s project will be mainly for civil use, but we can’t rule out it will carry some military functions,” Xu said. “Many countries in the world have been researching these kind of deep water projects and China is just one of those nations.”

Whether China actually builds this base–and if so, where–remains to be seen. If it does so, it will also be interesting to assess whether the base turns out to be most useful as a scientific research facility, a political gambit, or a military base.

U.S. and India Agree to Jointly Push for the Most Important-Sounding Treaty You’ve Never Heard of

by Julian Ku

India’s Prime Minister Narendra Modi visited Washington D.C. this week to meet with President Obama.  Buried in their joint statement, the two leaders reiterated their support for an important-sounding treaty that I, nonetheless, had never heard of:

27) The leaders affirmed their support for a UN Comprehensive Convention on International Terrorism that advances and strengthens the framework for global cooperation and reinforces that no cause or grievance justifies terrorism.

The CCIT (draft text here) was proposed by India in 1996. In a nice illustration of just how slow the process of treaty making can take in the U.N. system, the treaty has languished in the 20 years since  in an “Ad Hoc Committee” and then in a “working group of the Sixth Committee of the United Nations General Assembly.”   Apparently, it continues to languish there due to disagreements over the application of its definition of terrorism to military forces and its application to “national liberation forces” (a 2014 public discussion is posted here).  Here is the definition in the draft text.

1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or
(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the present article resulting or likely to result in major economic loss; when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

This is a pretty bland and uncontroversial definition.  The “working group” is supposed to be close to finalizing the text, but they have been “finalizing” since 2013.  It sounds like the treaty’s definition of terrorism needs an exemption for military forces (that seems doable) and an exemption for “liberation movements resisting foreign occupation” (that seems not so doable).

I suppose it would be a big deal if a CCIT was adopted since it would commit the world to a broad single definition of terrorism.  Then again, there are already at least 19 terrorism-related conventions, and it is hard to tell how much of a difference they make. The problem doesn’t seem to be a failure to sign international anti-terrorism treaties, but compliance with them.

On the other hand, there does seem to be value in pushing this position: “no cause or grievance justifies terrorism.”  This is a view that not only the U.S. and India, but also China, Russia, and the EU can get behind.  It will be interesting to see if this coalition can overcome the opposition of the Organization for Islamic Cooperation (OIC) states who seem worried only about protecting the rights of the Palestinians to “resist” the Israeli occupation.  India seems gung-ho about this treaty, so it will be interesting to see if they can push it along (with U.S. help).